Towards a jurisprudence of corruption: Reformulating the contra fiscum principle for the purposive approach

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Towards a jurisprudence of corruption: Reformulating the contra fiscum principle for the purposive approach

Author Colette Ashton

ISSN: 1996-2177
Affiliations: MA candidate, International Anti-Corruption Academy, Austria
Source: South African Law Journal, Volume 136 Issue 4, p. 749-780

Abstract

The dissenting judgment in the case of Daikin v CSARS disrupted the new orthodoxy of a purposive approach to the interpretation of legal texts. While the judges’ criticism of the purposive theory in its current form is valid, their proposal that the old literalistcum- intentionalist approach to statutory interpretation should be revived is potentially damaging to the project of building post-apartheid jurisprudence. Rather than reviving an outdated and theoretically unsound theory of interpretation, a better approach would be to strengthen the theoretical foundations of the purposive approach. This article attempts to contribute to this task by giving an overview of hermeneutic theory as realized in Johan van der Walt’s model of law as sacrifice, read through a Habermasian lens. I argue that this approach is more radical in orientation, better suited to the later post-apartheid context, and more appropriate to the Anthropocene era. The rationale for the contra fiscum principle could be reformulated in terms of constitutional norms, and the rule could be incorporated into a more resilient purposive theory.

The selection of victim groups in hate-crime legislation

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

The selection of victim groups in hate-crime legislation

Author Joanna Botha

ISSN: 1996-2177
Affiliations: Associate Professor in Public Law, Nelson Mandela University
Source: South African Law Journal, Volume 136 Issue 4, p. 781-810

Abstract

A hate crime is traditionally defined as a crime motivated by bias towards a particular group of persons based on the group’s protected characteristics. A key element is that the victim must be targeted based on his or her identity, with the victim belonging to groups of persons who are not valued by society, and often described as ‘the other’. The definition of a hate crime in a legislative provision is thus dependent on the identification of groups selected to be the victims of such crimes. The second version of South Africa’s Prevention and Combating of Hate Crimes and Hate Speech Bill was published in 2018. Section 3(1) of the Bill introduces the hate-crime concept into law and identifies a list of seventeen protected group characteristics. This article examines which groups of persons should be treated as deserving of protection in South Africa’s proposed hate crime regulatory framework. I argue for a principled approach that at its core appreciates the socio-legal context in which the phenomena of hate crime occur and the significance of group vulnerability. An added constraint is that the successful implementation of hate-crime legislation is an imperative. The hate-crime construct is new to South Africa and will serve a critically important purpose. An overly broad and unscientific legislative model creates the risk of unfavourable reception, an inability to implement, and problems with constitutional justification. For the South African context, it is recommended that the drafters make use of the concept of vulnerability to select group characteristics, coupled with an appropriately worded analogous grounds provision.

Tony Honoré: Last Roman

by | Mar 3, 2020 | SALJ, SALJ V136 I4 2019

Tony Honoré: Last Roman

Author Jeremy Gauntlett

ISSN: 1996-2177
Affiliations: Member of the Cape and Johannesburg Bars and of the Bar of England and Wales; Member of the Bar of Ireland; Bencher of the Middle Temple
Source: South African Law Journal, Volume 136 Issue 4, p. 811-817

Abstract

None

Notes: Too simple for National Credit Act matters: Reconsidering the scope of Magistrates’ Courts rule 5(2)(b)

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

Notes: Too simple for National Credit Act matters: Reconsidering the scope of Magistrates’ Courts rule 5(2)(b)

Author Stephan van der Merwe

ISSN: 1996-2177
Affiliations: Senior Attorney and Lecturer, Stellenbosch University Law Clinic
Source: South African Law Journal, Volume 136 Issue 3, p. 397-403

Abstract

None

Notes: Pienaar Bros (Pty) Ltd v CSARS, retroactive fiscal legislation and the rule of law: Has South Africa just taken a step back in its constitutional democracy?

by | Jan 5, 2020 | SALJ, SALJ V136 I3 2019

Notes: Pienaar Bros (Pty) Ltd v CSARS, retroactive fiscal legislation and the rule of law: Has South Africa just taken a step back in its constitutional democracy?

Author Afton Titus

ISSN: 1996-2177
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town
Source: South African Law Journal, Volume 136 Issue 3, p. 404-420

Abstract

None