ISSN: 2517-9543
Affiliations: Department of Private Law, Law Faculty, University of Johannesburg
Source: Juta’s Insurance Law Bulletin, Volume 22 Issue 2, 2019, p. 67 – 79
None
ISSN: 2517-9543
Affiliations: Department of Private Law, Law Faculty, University of Johannesburg
Source: Juta’s Insurance Law Bulletin, Volume 22 Issue 2, 2019, p. 80
None
ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 29 Issue 1, p. 1-28
https://doi.org/10.47348/FUND/v29/i1a1
Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.
ISSN: 2411-7870
Affiliations: LLB LLM PGDip in Labour Law Practice PGDip in Drafting and Interpretation of Contracts. Lecturer, Department of Criminal Law and Procedure, Nelson Mandela University
Source: Fundamina, Volume 29 Issue 1, p. 29-52
https://doi.org/10.47348/FUND/v29/i1a2
Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts’ challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities. Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.
ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) MPhil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal; MA (Hons) (University of St Andrews) LLB (University of Natal) MSc PhD (University of Edinburgh). Senior lecturer, School of Law, University of KwaZulu-Natal
Source: Fundamina, Volume 29 Issue 1, p. 53-79
https://doi.org/10.47348/FUND/v29/i1a3
Mahmood Mamdani has argued that a system of “define and rule” lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of “race” dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani’s general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to “race” and “tribe”. It is the contention of this contribution that Mamdani is correct in his assessment that “define and rule” lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved on the ground. Certain individuals and groups tended to fall between broad definitions of “race” and “tribe”, both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony’s newspapers around that time. Even though there may have been relatively few individuals who fell “in-between” the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.