The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

The Doctrine of Subjective Rights, the Actio Iniuriarum and the Constitution: A Convergent Doctrinal Basis for the Law of Personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 272 – 287
https://doi.org/10.47348/SLR/2021/i2a5

Abstract

This article revisits the doctrinal basis of the positive law in protecting the human personality as a legal interest given the approach adopted by the judiciary. In terms of this approach, based on common law and constitutional considerations, the human personality is not articulated as a composite interest (ie the human personality is not doctrinally conceptualised as consisting of various discrete personality rights). Arguably, such an approach denigrates the traditional view that the human personality ought to be protected as a composite interest in law. Therefore, this article interrogates more carefully the doctrinal basis of the law of personality from the perspective of the common law and the Constitution in the light of the controversial nature of the judiciarys recent approach. In this regard, the article finds that there is an overlap, or more specifically a convergence, between common-law personality rights (as premised on the doctrine of subjective rights and the actio iniuriarum) and fundamental constitutional rights regarding the human personality. The article demonstrates that in terms of scope (ie the various personality interests recognised in positive law) and framework (ie the differentiation and adjudication of the different personality interests in positive law), both the common law and the Constitution attest to the composite nature of the human personality as a legal interest. On this basis, I argue that such convergence enables the creation of a single and integrated doctrinal basis for the post-constitutional operation of the human personality as a legal interest. It is further argued that such a single and integrated doctrinal basis provides the foundation for the further constitutionalisation of the law of personality in terms of a transformative constitutionalism paradigm and the horizontal application of the Constitution.

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

Does the Aggravated Sentencing Regime under the Prevention of Organised Crime Act 121 of 1998 Violate Freedom of Association? A Constitutional and Comparative Analysis

Author: Delano Cole van der Linde

ISSN: 1996-2193
Affiliations: LLB LLM LLD (Stell), Senior Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 288 – 305
https://doi.org/10.47348/SLR/2021/i2a6

Abstract

In terms of section 10(3) of the Prevention of Organised Crime Act 121 of 1998 (POCA), a court may impose an aggravated sentence on a criminal offender if the offender was a gang member at the time of the commission of a crime. The court is entitled to apply section 10(3) to the sentencing of any common-law or statutory offence, save for the gang-related offences in Chapter 4 of POCA. As aggravated punishment is attached directly to a persons status as a gang member, one must question whether such aggravated punishment does not violate the right to freedom of association in section 18 of the Constitution of the Republic of South Africa, 1996. Section 18 is an unqualified right and subject only to the limitations clause under section 36 of the Constitution. The purpose of this contribution is to investigate whether the associational freedom guaranteed by the Constitution may be limited in light of considerations under international law (such as the International Covenant on Civil and Political Rights, the African Charter on Human and PeoplesRights and the European Convention on the Protection of Human Rights and Fundamental Freedoms) as well as foreign law (specifically the United States and Germany). The consensus is, broadly speaking, that persons are nondeserving of associational protection where the conduct connected to such an association is criminal in nature. Increased criminal consequences are justifiable where a persons unlawful conduct is also connected to their status and activity as a member of a criminal organisation. However, increased criminal consequences based merely on a persons membership of a criminal organisation, as is the case in terms of section 10(3) of POCA, is considered arbitrary and irrational. The conclusion is that section 10(3) of POCA should be amended so that it applies only to crimes that are related to a convicted persons gang-related activities.

A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

Authors: Williams C Iheme and Sanford U Mba

ISSN: 1996-2193
Affiliations: LLB LLM SJD, Associate Professor of Law, Jindal Global Law School; Visiting Professor, Strathmore Law School; LLB LLM SJD, Senior Associate in the law firm Dentons ACAS-Law
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 306 – 329
https://doi.org/10.47348/SLR/2021/i2a7

Abstract

The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA BA (Hon) MA PhD; Senior Research Associate at the Department of Politics and International Relations, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 330 – 361
https://doi.org/10.47348/SLR/2021/i2a8

Abstract

The judiciarys influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (SCOTUS) underscore the extent of the courts engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

The Protection of Refugee Children in Africa: Post-Convention on The Rights of The Child

Authors Leah A Ndimurwimo and Molya ND Vundamina

ISSN: 2411-7870
Affiliations: Senior lecturer, Nelson Mandela University; LLD (NWU) LLM (NMMU) LLB (OUT); LLM candidate; LLB (NMU)
Source: Fundamina, Volume 27 Issue 1, p. 33-66
https://doi.org/10.47348/FUND/v27/i1a2

Abstract

The plight of refugees is currently one of the concerning global human rights issues. The refugee population is largely comprised of women and children who become displaced during armed conflicts; this is because the majority of persons killed or who become victims of forced disappearance are men. Forcibly displaced children face direct physical threats, as well as a variety of health-related problems. Although forcibly displaced children generally include those who are not refugees, this contribution is only concerned with refugee children. Refugee children are vulnerable to different types of abuse and exploitation, and often become the target of discrimination, sexual exploitation and social marginalisation in the refugee transit camps and countries of exile. Although the Convention on the Rights of Child, 1989 was adopted to protect children’s rights worldwide, the true impact of these provisions remains uncertain. This contribution examines the extent to which the adherence to the Convention on the Rights of the Child is promoted in Africa. This study compares the situation in South Africa, Tanzania and Zambia to pinpoint the legal and practical challenges that face refugee children in those countries. The contribution concludes with recommended solutions for effectively protecting and promoting refugee children’s rights in Africa.

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2

Author: Stephen Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

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Peté, S
Keeping The Natives in Their Place: The Ideology of White Supremacy and The Flogging of African Offenders in Colonial Natal – Part 2
Fundamina, Volume 27 Issue 1, p. 67-100
https://doi.org/10.47348/FUND/v27/i1a3

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, and to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, which ultimately manifested as a series of rebellions and revolts throughout the colonial period, and which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with, in particular, African offenders. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that made up the ideology of white supremacy in the colony at the time.

The Contribution of Papyrus Ashmolean Museum 1945.97 (“Naunakht’s Will & Related Documents”) to Our Understanding of The Ancient Egyptian Testamentary Disposition and Succession Law

The Contribution of Papyrus Ashmolean Museum 1945.97 (“Naunakht’s Will & Related Documents”) to Our Understanding of The Ancient Egyptian Testamentary Disposition and Succession Law

Author Nicolaas J van Blerk

ISSN: 2411-7870
Affiliations: LLB MA D Litt et Phil (Ancient Near Eastern Studies)
Source: Fundamina, Volume 27 Issue 1, p. 101-142
https://doi.org/10.47348/FUND/v27/i1a4

Abstract

The New Kingdom Papyrus Ashmolean Museum 1945.97 (better known as “Naunakht’s will and related documents”) can assist us in gaining a better understanding of ancient Egyptian testamentary dispositions and its succession law. A problem that must be borne in mind when studying any ancient text, is that one should never impose modern legal concepts on these ancient texts. Nonetheless, these ancient texts may contain building blocks of later legal concepts. In particular, Naunakht’s will may provide valuable information on concepts and elements pertaining to succession law in general. In addition, it may provide further valuable information on testamentary dispositions in particular and may indicate that the building blocks of succession law are much older than Roman law.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

Author: Dire Tladi

ISSN: 2521-2621
Affiliations: Professor of International Law, University of Pretoria; Member of the UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens).
Source: African Yearbook on International Humanitarian Law, 2020, p. 1 – 14
https://doi.org/10.47348/AYIH/2020/a1

Abstract

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

Rights enforcement in the African Human Rights Court: Restrictiveness, progressivity and resistance

Author: Lilian Chenwi

ISSN: 2521-2621
Affiliations: LLB, LLM, LLD, dip IPHU. Professor, School of Law, University of the Witwatersrand
Source: African Yearbook on International Humanitarian Law, 2020, p. 15 – 43
https://doi.org/10.47348/AYIH/2020/a2

Abstract

Africa is characterised by, inter alia, oppressive political systems, a culture of impunity of those who govern, and the use of state sovereignty mantra in the face of gross and systematic rights violations. Yet, African states have, through the establishment of the African Human Rights Court, created an avenue for judicial scrutiny of their laws and executive action that affect human rights. While the Court holds great promise in relation to fighting impunity and the provision of effective remedies for rights violations, ensuring respect for human rights, and fostering Africa’s quest for good governance, development and regional integration, it operates amidst state resistance and other complexities, which threaten its effectiveness and existence. This article considers whether, against this background, the Court has shown restrictiveness or progressivity in its enforcement of rights.