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Now showing items 32-46 of 46
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Albertus, Chesne (Juta Law, 2012)[more][less]
Abstract: ‘We ought to give those who are to leave life … the terminally ill … the same care and attention that we give those who enter life – the new-born.’1 In this article it is contended that terminally ill inmates have a right to palliative care and that the State has a duty to fulfil this right. The number of unsuccessful medical parole applications and recorded natural deaths of inmates is considered as indicative of the problem of terminally ill inmates in South African prisons. It is further contended that the State’s obligation arises from an inmate’s constitutional right to health care and from an increasingly recognised international human right to palliative care. URI: http://hdl.handle.net/10566/410 Files in this item: 1
AlbertusHealthCareInmates2012.pdf (212.2Kb) -
Mujuzi, Jamil Ddamulira (Juta Law, 2008)[more][less]
Abstract: When the death penalty was declared unconstitutional in South Africa, the government enacted the Criminal Law Amendment Act in 1997 which, amongst other things, stipulated that a person convicted of some of the scheduled offences was to be sentenced to life imprisonment unless there were substantial and compelling circumstances. Many courts interpreted substantial and compelling circumstances in many different, and at times confusing, ways. The Supreme Court of Appeal clarified the meaning of substantial and compelling circumstance in the well-known Malgas case in which it held, inter alia, that courts should not lightly depart from imposing severe sentences, since the legislature had singled out the scheduled offences to be punished severely because they are serious offences. One of the criteria the Court set was that courts should not rely on ‘speculative hypotheses favourable to the offender’ to avoid imposing life sentences. However, recently, in the Nkomo case, the Court held that the prospect of rehabilitation of the offender is a substantial and compelling circumstance to justify the imposition of a lesser sentence. This article analyses rehabilitation as an objective of punishment and highlights the likely challenges associated with the approach the Court seems to be adopting. URI: http://hdl.handle.net/10566/420 Files in this item: 1
MujuziLifeImprisonment2008.pdf (214.8Kb) -
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) -
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) -
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) -
De Ville, Jacques (Springer, 2009)[more][less]
Abstract: The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law. URI: http://hdl.handle.net/10566/301 Files in this item: 1
DeVilleAnaximanderFragment2009.pdf (258.1Kb) -
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) -
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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Muntingh, Lukas (Institute for Security Studies and the Community Law Centre, University of the Western Cape, 2008)[more][less]
Abstract: Civil society organisations play a key role in assisting prisoners and ex-prisoners to reintegrate into society and may at present render the bulk of such services. It is especially in respect of post-release support services that non-governmental organisations play a critical role as the Department of Correctional Services does not have a strong focus on this aspect of reintegration work. The type of services and activities that civil society organisations engage in has not been documented on a national level. There is thus a need to describe the types of prisoner support and offender reintegration programmes rendered by civil society organisations in South Africa based on up-to-date fieldwork. A survey was conducted of 21 organisations working in the off ender reintegration and prisoner support field. This paper presents an analysis of the results which are based on the views of practitioners working in these organisations. URI: http://hdl.handle.net/10566/237 Files in this item: 1
MuntinghCivilSocietyRole2008.pdf (4.643Mb) -
Khoza, Sibonile (Community Law Centre, University of the Western Cape, 2007)[more][less]
Abstract: Socio-economic rights are those rights that give people access to certain basic needs necessary for human beings to lead a dignified life. Government and, in certain circumstances, private individuals and bodies, can be held accountable if they do not respect, protect, promote and fulfil these rights Socio-economic rights are especially relevant for vulnerable and disadvantaged groups in society. They are important tools for these groups, who are often most affected by poverty and who experience a number of barriers that block their access to resources, opportunities and services in society. Our Constitution (Act 108 of 1996) provides a number ways for claiming and defending basic needs, such as our socio-economic rights to housing, health care, food and water, which is what this book focuses on. URI: http://hdl.handle.net/10566/254 Files in this item: 1
KhozaSocio-EconomicRights2007.pdf (4.543Mb) -
De Ville, Jacques (Springer, 2008)[more][less]
Abstract: This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation, speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications for constitutional interpretation. URI: http://hdl.handle.net/10566/360 Files in this item: 1
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De Ville, Jacques (Springer Verlag, 2007)[more][less]
Abstract: Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law, but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature which requires of the courts to fundamentally rethink the way in which they exercise their supervisory function. URI: http://hdl.handle.net/10566/371 Files in this item: 1
DeVilleJudicialSupervision2007.pdf (273.1Kb) -
Combrinck, Helene; Wakefield, Lorenzo (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: The inadequate or inappropriate police responses to domestic violence often result from a lack of knowledge of the Domestic Violence Act (DVA) and the National Instruction or from a misinterpretation of the DVA’s provisions. In the interviews undertaken, the central question asked was: ‘Do current training programmes provide SAPS members with the knowledge and skills required to apply the DVA and National Instruction in practice?’ It appeared from the interviews that the majority of the research participants had a basic awareness of the DVA and the National Instruction. However, when it came to the practical application of knowledge in a ‘problem-solving’ scenario, it was notable that the majority of interviewees experienced difficulties when multi-faceted variables were included. It was recommended that more members need training on the DVA, and more frequent and/or more in-depth courses should be offered. Furthermore it was recommended that special attention be devoted to training on domestic violence during the basic six months’ training for new students. URI: http://hdl.handle.net/10566/209 Files in this item: 1
CombrinckDVA2009.pdf (1.059Mb) -
du Toit, Francois (Oxford University Press, 2013)[more][less]
Abstract: In this article, I assess the constitutive status accorded to trust deeds in Potgieter v Potgieter and Pascoal v Wurdeman, two recent South African judgments on trust variation. In particular, I analyse judicial condemnation of invoking reasonableness or fairness as free-standing norms to refashion the terms of trust deeds outside established common law or statutory norms; and I illustrate the place and role that equitable considerations play in South Africa as components of existing aggregated legal rules on trust variation. I also test the judicial approach taken to the foundational nature of trust deeds in the aforementioned judgments against the status accorded to trust instruments and documents by the Trust Property Control Act—a statute that regulates aspects of trust law in South Africa. URI: http://hdl.handle.net/10566/624 Files in this item: 2
DutoitTrustdeeds2013.pdf (148.0Kb)DutoitTrustdeedsPublished2013.pdf (81.19Kb)
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Now showing items 32-46 of 46