Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

Author Lea Mwambene

ISSN: 2522-3062
Affiliations: University of the Western Cape, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 169 – 193

Abstract

‘Marriage by capture’ among the Hmong people in the United States of America and ukuthwala in South Africa both take the form of the mock abduction of a young woman for the purpose of a customary marriage. The noteworthy point about these two customary marriage practices is that, although Hmong marriage by capture takes place in the context of a minority community in a liberal state, and ukuthwala occurs in a postcolonial state, courts in these jurisdictions convert these marriage practices to the common law offences of rape, assault, and abduction. This article reflects on the accused-centred approach in the case of People v Moua, in which the court invoked the cultural defence, and the victim-centred approach in Jezile v S, which severed cultural values from the rights of the woman. It questions whether the two communities in question, in their respective liberal and postcolonial settings, influence the attitudes of the courts in cases involving rape, assault, and abduction charges. The main argument proffered is that both approaches may encourage communities to continue marriage abduction practices without bringing them to the attention of investigative organs, with adverse human rights implications for the women and girls affected. The ultimate purpose of this conversation, therefore, is to show how the approaches of the courts to the recognition or non-recognition of these customary practices affect the rights of girls and women who encounter institutions of law that alienate people belonging to minority cultural groups, and often perpetuate injustice.

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Namibia and Blanket Amnesties: Challenging the Namibian Blanket Amnesties on the basis of International Law in the Namibian Courts

Author Atilla Kisla

ISSN: 2522-3062
Affiliations: PhD Candidate, Department of Public Law, University of Cape Town
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 3 – 39

Abstract

Amnesty laws issued by Administrator General Pienaar in 1989 and 1990 still show their effect by preventing prosecutions and investigations of situations that occurred before Namibia’s independence. Unlike South Africa, Namibia did not establish a truth-finding body such as the Truth and Reconciliation Commission. The result is a situation of silence, oblivion and impunity without any kind of accountability. On this basis, crimes such as international crimes or serious human rights violations have never been prosecuted or even investigated. As this article argues, the amnesty laws from 1989 and 1990 qualify as blanket amnesties. Up until today, Namibians as well as the members of the South African Defence Force benefit from those amnesties. Against this backdrop, the question of whether the Namibian blanket amnesties apply in relation to international crimes and grave human rights violations will be addressed. This article argues that based on international law, the application of the Namibian blanket amnesties can be challenged in a potential criminal case that deals with international crimes or grave human rights violations in the Namibian courts. Therefore, this article illustrates how international law applies in the Namibian legal system. In this context, Namibia follows a monist approach which makes it quite receptive of international law and international standards. On this basis, this article points out binding international law at the time before and after Namibia’s independence as well as examining Namibia’s binding treaty obligations which arise under the Geneva Conventions, Torture Convention and the International Covenant on Civil and Political Rights. In the next section, an examination of domestic and international jurisprudence lays the foundation for the argument that the Namibian blanket amnesties can be challenged in a Namibian court when the crimes in question constitute international crimes, such as crimes against humanity or war crimes.

Legally Pluralist and Rights-based Approaches to South African and English Muslim Personal Law—A Comparative Analysis

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Legally Pluralist and Rights-based Approaches to South African and English Muslim Personal Law—A Comparative Analysis

Author Brigitte Clark

ISSN: 2522-3062
Affiliations: Senior Lecturer, University of KwaZulu Natal and Honorary Senior Research Fellow, Oxford Brookes University
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 40 – 82

Abstract

This article examines the right to the free exercise of religion from a comparative perspective in the context of Islamic marriage and divorce in England and South Africa. In particular, the article considers how Islamic marriage may be interpreted and recognised in a coherent manner in rights-based systems of law and how these two legal systems ensure that the rights of religious women are fully respected and acknowledged. The similarity in the growth of non-legal, quasi-judicial bodies (sharia councils in England and ulama in South Africa) is analysed, along with their effect on rulings on Islamic divorces and other matters. The article suggests that both legal systems may learn from the other and suggests ways in which this comparative method of legal analysis can be employed to achieve legal reform and the legal recognition of these marriages. In this regard, the article deals with various models, based on either the assimilation and unification of marriage laws (as proposed in South Africa) or integration and pluralism. The article examines these models not only from a pragmatic perspective, but also from a rights perspective. It suggests that the assimilation model, based on a Western, Judeo-Christian paradigm of marriage, would not only be inconsistent with the ethos of legal pluralism promoted by the South African Constitution and the English Human Rights Act, but, more importantly, would not protect the rights of Muslim women adequately. Therefore, the article concludes that, in line with recent South African High Court jurisprudence, the legislative recognition of Muslim marriage and divorce law is urgently required in both jurisdictions.

Disparaging Language (ex curia) as a Barrier in Individual Complaints before the European Court of Human Rights (Zhdanov v Russia)—Lessons for the African System?

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

Disparaging Language (ex curia) as a Barrier in Individual Complaints before the European Court of Human Rights (Zhdanov v Russia)—Lessons for the African System?

Author Angelo Dube

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Public, Constitutional and International Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 83 – 100

Abstract

On 16 July 2019, the European Court of Human Rights (ECtHR) rejected an application by Russian human rights activist, Nikolay Alekseyev, on the basis that he had published personally offensive and threatening material online, directed towards the ECtHR. This was in the matter of Zhdanov and Others v Russia Applications Nos 12200/08, 35949/11 and 58282/12. Even though the published material fell afoul of the European Convention in that it amounted to an abuse of the court process, nothing offensive was contained in the applicant’s own submissions before the court. In like fashion to the ECtHR’s admissibility requirements, the African Charter contains a much more pointed exclusionary clause which renders inadmissible any communication that contains disparaging or insulting language. The difference between the two systems is that the European system relies on an open-ended concept of ‘abuse of the right of individual petition’, whilst the African system specifically proscribes insulting language. In this article, I analyse the approach of the ECtHR in the Zhdanov matter, and contrast it with the approach of the African Commission on Human and Peoples’ Rights (the African Commission) under Article 56(3) of the African Charter on Human and Peoples’ Rights. I further interrogate whether there were any instances where, in similar fashion to the Zhdanov matter, the African Commission declared a communication inadmissible on account of insulting language occurring externally, and not contained within the submission itself. Alive to the fact that the concept of ‘abuse’ in the European system is wide, the article is limited to cases in which the abuse of the right of individual petition under the European Convention manifests in disparaging or insulting language.

A Gain-based Remedy for Breach of Contract in English Law: Some Lessons for South African Law

by | Jun 3, 2021 | CILSA, CILSA V53 I2 2020

A Gain-based Remedy for Breach of Contract in English Law: Some Lessons for South African Law

Author KA Seanego

ISSN: 2522-3062
Affiliations: Senior Lecturer, Department of Private Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 101 – 129

Abstract

A gain-based remedy for breach of contract is aimed at taking away the profits acquired through breach of contract. Traditionally, contractual damages can be claimed only if the breach caused the plaintiff patrimonial loss. There is an assumption that breach of contract causes a loss to the plaintiff, and as a result the defendant should compensate the plaintiff. However, in the past, courts have been confronted with cases where the opposite of this assumption is true. This is in instances where a defendant breaches a contract and gains profit as a result of that breach, whereas the plaintiff suffers little or no patrimonial loss. Unfortunately, in these circumstances the plaintiff may be left with no remedy or legal recourse for the breach, while the defendant may keep the profits generated as a result of the breach. However, in English law the courts have recognised a gain-based remedy in the circumstances outlined above, allowing the disgorgement of such ill-gotten profits. But a similar remedy has not yet gained recognition in the South African law of contract. The purpose of this article is to explore how South African law can draw some valuable lessons from English law in developing and recognising a gain-based remedy for breach of contract in order to deal with the profits generated through breach of contract.