Browsing Faculty of Law by Issue Date
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Kapindu, Redson (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: This research report demonstrates that international human rights law played a quintessential role in the drafting of the Constitution of South Africa, 1996, particularly the Bill of Rights, and that this was more so with regard to socio-economic rights where the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) highly influenced the guarantees of these rights under the Constitution, both in terms of language and content. The role of international human rights law has been even more pronounced in the South African socio-economic rights jurisprudence that has developed since 1994. Courts have referred to and applied international human rights law norms directly. This paper argues, however, that there are some areas where courts have fallen short in their appreciation and/or application of international human rights law. URI: http://hdl.handle.net/10566/232 Files in this item: 1
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De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself. URI: http://hdl.handle.net/10566/313 Files in this item: 2
DeVille2010MadnessCover.pdf (81.85Kb)DeVilleFoucaultMadness-andLaw2010.pdf (274.1Kb) -
De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this essay, one of Derrida’s early texts, Plato’s pharmacy, is analysed in detail, more specifically in relation to its reflections on writing and its relation to law. This analysis takes place with reference to a number of Derrida’s other texts, in particular those on Freud. It is especially Freud’s texts on dream interpretation and on the dream-work which are of assistance in understanding the background to Derrida’s analysis of writing in Plato’s pharmacy. The essay shows the close relation between Derrida’s analysis of Plato’s texts and Freud’s study of the dream-work. The forces at work in dreams, it appears, are at play in all texts, which in turn explains Derrida’s contentions in relation to the pharmakon as providing the condition of possibility of Plato’s texts. The essay furthermore points to the continuity between this ‘early’ text of Derrida and his ‘later’, seemingly more politico-legal texts of the 1990s. A close reading of Plato’s pharmacy, with its investigation via ‘writing’ of the foundations of metaphysics, and thus also of the Western concept of law, is obligatory should one wish to comprehend how Derrida attempts to exceed the restricted economy of metaphysics through his analysis of concepts such as justice and hospitality. URI: http://hdl.handle.net/10566/287 Files in this item: 1
DeVilleRevisitingPlatoPharmacy2010.pdf (318.7Kb) -
Muntingh, Lukas (Community Law Centre, University of the Western Cape, 2010)[more][less]
Abstract: The Correctional Services Act (111 of 1998) was promulgated in 2004 creating a rights-based framework for South Africa’s prison system. In 2008 the Correctional Services Act was amended by the Correctional Services Amendment Act (25 of 2008). The purpose of this guide is to describe the human rights framework pertaining to inmates in South Africa based on the Constitution, Correctional Services Act and the Regulations accompanying the legislation. Large parts of this Act deal,for instance, with the operations and management of the Department of Correctional Service and do not have a direct bearing on the rights of inmates. URI: http://hdl.handle.net/10566/227 Files in this item: 1
MuntinghCPA2010.pdf (949.5Kb) -
Chenwi, Lilian; Tissington, Kate (Community Law Centre, University of the Western Cape, 2010)[more][less]
Abstract: To make sure that service delivery is effective and has a positive impact on people’s quality of life, it is important to have meaningful engagement between communities and the government. South Africa’s Constitution makes provision for individuals and communities to take part in service delivery processes and decisions. This right is important in the fight against poverty, inequality and marginalisation. Some people do not know that their right to participate is protected in the Constitution, in South African legislation and in international law. They also do not know the key principles about meaningful engagement set out by the courts, especially the Constitutional Court. This booklet focuses mainly on the right to housing when it explains the objectives, subject and process of meaningful engagement. URI: http://hdl.handle.net/10566/228 Files in this item: 1
ChenwiCommunityParticipation.pdf (190.6Kb) -
de Visser, Jaap; Steytler, Nico; Machingauta, Naison (Community Law Centre, University Western Cape, 2010)[more][less]
Abstract: On 3-4 November 2009 the Community Law Centre hosted a seminar entitled “Policy Dialogue on the Future of Local Government in Zimbabwe”. A diverse spectrum of local government practitioners was assembled to discuss issues related to local government in Zimbabwe. The seminar was structured around six critical themes relating to local government, namely socio-economic transformation, local government institutions and elections, local government financing, traditional authorities, local government functions and supervision of local government. Six authors from Zimbabwe prepared and delivered position papers on the above subject matters against the background of comparative comments from South African academics. URI: http://hdl.handle.net/10566/208 Files in this item: 1
DeVisserLocalGovtZimbabwe2010.pdf (2.142Mb) -
De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this essay the relation between justice and the gift in Derrida’s thinking is explored. The essay shows that an understanding of the ontological difference or the relation between Being and beings in Heidegger’s thinking as well as Freud’s speculations on the death drive are essential to comprehend the ‘concept’ or ‘notion’ of différance as well as the gift in Derrida’s thinking. The analysis points to the complexity of Derrida’s thinking in his contemplation of the relation between justice and law and the need for a broader investigation to understand what is at stake in this regard. An exploration of the gift shows that Derrida’s thinking on justice is not ‘relativistic’ as is often assumed and that the gift can in a certain way function as a ‘guide’ in questions of constitutional interpretation. URI: http://hdl.handle.net/10566/411 Files in this item: 1
DeVilleGivenTime2010.pdf (323.4Kb) -
Combrinck, Helene; Wakefield, Lorenzo (Institute for Security Studies, 2010)[more][less]
Abstract: As anticipated by the drafters of the Domestic Violence Act (DVA), the South African Police Service holds the key to the successful implementation of the Act. Over the past ten years, researchers and independent bodies tasked with monitoring the implementation of this legislation have consistently called for more training for police officials on how to deal with domestic violence. However, the reality is that police officials already receive such training. The question that therefore arises is why these training programmes appear to be ineffective in ensuring compliance with the DVA. A recently completed research and advocacy project found that although the majority of SAPS members interviewed had a basic understanding of the DVA and its key concepts, their ability to apply its provisions in practical problemsolving scenarios was often limited, leading to the recommendation that training methodologies should be more practice-oriented if they are to improve DVA compliance. URI: http://hdl.handle.net/10566/576 Files in this item: 1
CombrinckDomesticViolence2010.pdf (1.122Mb) -
Powell, Derek (Oxford University Press, 2010)[more][less]
Abstract: The international community accepts that peace, justice and development are indivisible properties of human freedom and thus wants a more coordinated approach to post conflict recovery. Today, transitions to democracy are typically launched through constitutional negotiations and anchored in efforts to fix broken state institutions or create new ones. These are settled strategies for addressing the social and economic causes of conflict in troubled societies. Transitional justice (TJ) has been slow to appreciate or capitalize on the inherent potential of these political processes to further justice and peace. By not taking a wider view of the opportunities for change that are presented by the transitional moment, TJ limits its capacity to construct the institutions that must work if a return to conflict is to be prevented. With this in mind, prominent practitioners have begun to look at how to extend TJ’s brief to include a wider set of issues linked to social justice. They are also looking for concepts and tools to bridge the divide between the field and related disciplines. This article presents South Africa’s transition as a case study of this wider view and is written from the perspective of a practitioner who was involved in building the post-apartheid democratic state. It aims to contribute to the current debate about TJ’s stake in post conflict transitions. URI: http://hdl.handle.net/10566/610 Files in this item: 1
PowellTransitionalJustice2010.pdf (275.6Kb) -
Murungi, Nkatha L.; Gallinetti, Jacqui (Conectas Human Rights, 2010)[more][less]
Abstract: The development of sub-regional communities in Africa is not a new phenomenon, but the incorporation of human rights into their agenda is relatively new. In effect, REC courts have introduced a new layer of supra national protection of human rights in Africa. The development is welcomed because it is likely to advance the cause for the promotion and protection of human rights. However, considering that the primary focus of the RECs is economic development, their ability to effectively embrace the role of human rights protection is questionable. The development of this mandate for the sub-regional courts is necessitated by the emerging prominence of human rights in the business of RECs. But, its interpretation and implementation has extensive ramifications for the advancement of human rights in Africa; the harmonisation of human rights standard in the region and for the unity and effectiveness of the African human rights system. URI: http://hdl.handle.net/10566/262 Files in this item: 1
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Wakefield, Lorenzo (Institute for Security Studies, 2011)[more][less]
Abstract: The Child Justice Act 75 of 2008 mandates the Minister of Justice and Constitutional Development to report annually on the implementation of the Child Justice Act to the Parliamentary Portfolio Committee on Justice and Constitutional Development. On 1 April 2011 a year had passed since the implementation of the Child Justice Act. This article interrogates the annual report presented to parliament on the first year of implementation of the Act, and concludes that it is not possible to accurately assess whether the Child Justice Act was implemented fully during the year, as the statistics provided in the annual report by different departments are unclear and incomparable. The article also reflects those aspects of the Act that have been implemented. URI: http://hdl.handle.net/10566/561 Files in this item: 1
WakefieldChildJustice2011.pdf (1.255Mb) -
Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L. (Cambridge University Press, 2011)[more][less]
Abstract: The right to non-discrimination for all children is established in international human rights law. International children’s rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children’s rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children. URI: http://hdl.handle.net/10566/577 Files in this item: 1
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Wakefield, Lorenzo (Queens University, Belfast School of Law, 2011)[more][less]
Abstract: Article 40 of the United Nations Convention on the Rights of the Child1 requires states parties to take appropriate measures to ensure that children accused of committing offences are treated in a manner that would ensure that their best interests are upheld. South Africa2 ratified the CRC in 1995, the provisions of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the Constitution stipulates that children may not be detained, except as a measure of last resort and, should they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies with the international standards set by the CRC (15 years after SA ratified it); the general comments by the United Nations Committee on the Rights of the Child 3 and other non-binding, yet persuasive instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant steps to comply with its international obligations when it domesticated the CRC in relation to children who commit offences. URI: http://hdl.handle.net/10566/598 Files in this item: 1
WakefiledChildJusticeAct2011.pdf (228.2Kb) -
De Ville, Jacques (Springer, 2011)[more][less]
Abstract: Michel Foucault provides a radical challenge to the liberal approach to power and law, which is echoed by Jacques Derrida. Important differences exist between the analyses of Foucault and Derrida which should not be overlooked. This essay proceeds on the basis of an awareness of these differences, yet it at the same time attempts to bring these thinkers closer together, with reference specifically to the thinking of Freud. It is often said that Foucault does not offer an alternative to that which he criticises or that his analyses do not provide for a way in which to escape from the effects of power. By specifically focusing on Foucault’s reliance on the notion of ‘play’ in Society Must Be Defended, it is submitted that an ‘escape’ is in fact provided for. The deconstructive reading of Foucault which is presented here attempts to ensure that Foucault does not remain trapped within metaphysics. URI: http://hdl.handle.net/10566/286 Files in this item: 1
DeVilleRethinkingPower-andLaw2011.pdf (584.0Kb) -
Wakefield, Lorenzo; Murungi, Nkatha L. (Pretoria University Law Press, 2011)[more][less]
Abstract: International law approaches the right to education for children with disabilities in a rather generic way. This means that the rights of children with intellectual disabilities have to be gleaned from the general provisions of the conventions. In view of the centrality of intellectual capacity in the context of education, it is imperative to decipher the import of the right to education for children with intellectual disabilities. For this purpose, this chapter explores the content of international law on the right to education of children with intellectual disabilities. It uses two case studies to assess the approach of African states to the domestication of the obligations in this regard. Kenya and South Africa have both ratified the CRC, ACRWC and the CRPD. Further, Kenya has ratified and South Africa signed the International Covenant on Economic, Social and Cultural Rights (CESCR). URI: http://hdl.handle.net/10566/545 Files in this item: 1
WakefieldIntellectualDisability2011.pdf (134.2Kb) -
Wakefield, Lorenzo; Assim, Usang Maria (Juta, 2011)[more][less]
Abstract: The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child took place at the African Union Commission Headquarters in Addis Ababa, Ethiopia, in November 2010 and March 2011, respectively. This article provides an overview of these sessions, together with the Civil Society Organisations Fora that preceded these sessions. These sessions featured significant developments in the work of the Committee. The first relates to a new collaboration between a network of five non-governmental organisations and the Committee to promote the work of this treaty body. Secondly, the Committee delivered its first communication, finding against the government of Kenya in regard to the right to nationality (amongst other rights) of Nubian children in Kenya. These two activities are major highlights for the Committee in the execution of its mandate. It is argued that, despite the challenges faced by the Committee, it is at the threshold of a new era through which it may be established as a significant regional human rights treaty body. URI: http://hdl.handle.net/10566/546 Files in this item: 1
WakefieldAfricanCommitteeExperts2011.pdf (235.4Kb) -
De Ville, Jacques (University of California Press, 2011)[more][less]
Abstract: This essay enquires into the depictions of Justice through the ages, as well as the myths surrounding these depictions, more particularly in Egypt, Greece, and Rome, as well as in modern times. The essay departs in significant respects from traditional interpretations by seeking to gain from the insights in relation to mythology and the use of symbols provided by psychoanalysis, structuralism, Heidegger’s thinking on Being, and deconstruction. Insofar as psychoanalysis is concerned, of importance in the present context is Freud’s analysis of symbolism in the interpretation of dreams and in myths, specifically insofar as he contends that the symbols employed there almost invariably have a sexual connotation. The approach of Claude Lévi-Strauss is the focus of the detour through structuralism, with Lévi-Strauss challenging certain of the most prevalent ideas in relation to myth, such as that there is some original version of a myth, usually believed to be the earliest version. In the case of Heidegger, of particular importance is his challenge to us “moderns” to not be too quick in our belief that we understand ancient texts or the ancient conceptions of deities. He more specifically places in question the common belief that the gods and goddesses are persons or that they are abstract personifications of concepts. Derrida, in his analysis of the texts of Freud, Lévi-Strauss and Heidegger, further develops the ideas of each of these thinkers, seeking thereby to go beyond the Oedipus complex, beyond the security of structure, and beyond Being. After an analysis of depictions of the goddesses Ma’at, Themis, Dike and Justitia, based on the insights gained in the preceding analysis, the essay concludes with a reading of the blindfold of Justice in her modern guise which seeks to exceed metaphysics. Drawing specifically on Derrida’s analysis of blindness in drawing, it arrives eventually not at the essence, but the an-essence of justice. URI: http://hdl.handle.net/10566/288 Files in this item: 1
DeVilleMythologyImagesJustice2011.pdf (4.882Mb) -
Utama, Paku (2011)[more][less]
Abstract: This paper identifies the link between gatekeepers and corruption, and examines how money laundering mechanisms are used to conceal the proceeds of corruption. In order to successfully trace and recover stolen assets, we need to understand how gatekeepers utilize various money laundering mechanisms and offshore financial centres. This writing highlights how gatekeepers operating in the private sector, wittingly or unwittingly, use their expert knowledge of the international financial system to facilitate corruption by helping corrupt leaders legitimate, secure, and obfuscate the movement of the proceeds of corruption within the global banking system. It also looks at potential alternative responses to further curb gatekeeper’s roles in the money laundering process. URI: http://hdl.handle.net/10566/241 Files in this item: 1
UtamaStolenAssets2011.pdf (613.2Kb) -
Powell, Derek (SUN Press, 2012)[more][less]
Abstract: Local government is a mirror of the larger political and economic forces, cleavages and problems that are shaping South African society. It is these deeper fault lines in society, rather than the Zuma government’s turnaround strategy or the 2011 local elections result, which will drive future policy and determine its effects. This is the first lesson of local government reform in all four terms of national government examined in this chapter. In each term, national policy reforms were moulded by shifting political and economic circumstances and larger national interests, not simply by the unfolding logic of the original blueprint for local government in the 1998 white paper. The outcome of eighteen years of policy reform, however, was not the new society imagined in the white paper, but an imperfect transition that is local government today: where peaceful electoral competition coexists with violent public protests, racial group areas endure in fact, even if not in law, pockets of good governance survive amidst systemic corruption and mismanagement, and national policy goals consistently exceed local government’s capacity to deliver them and the economy’s skills base. The second lesson flows from that reality – due to the fact that the problems of local government are so nested in the broader problems of our society, further local government policy reform and sweeping national turnaround strategies are likely to have imperfect impacts on ‘the problem of local government’ in South Africa. URI: http://hdl.handle.net/10566/551 Files in this item: 1
PowellLocalGovernment2012.pdf (198.7Kb) -
Albertus, Chesne (University of the Western Cape, 2012)[more][less]
Abstract: This paper is aimed at critically assessing the new section 79 of the Correctional Services Act and whether it creates a medical parole system which protects the dignity of inmates and gives due consideration to public safety. URI: http://hdl.handle.net/10566/518 Files in this item: 1
AlbertusMedicalParole2012.pdf (722.4Kb)