Dullah Omar Institute for Constitutional Law, Governance and Human Rights

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The Dullah Omar Institute, formerly the Community Law Centre, at the University of the Western Cape (‘the Centre’), established in 1990, works to realise the democratic values and human rights enshrined in South Africa’s Constitution. It is founded on the belief that our constitutional order must promote good governance, socio-economic development and the protection of the rights of vulnerable and disadvantaged groups. Given the need for regional integration to encourage development in Africa, the Centre also seeks to advance human rights and democracy in this broader context. Based on high quality research, the Centre engages in policy development, advocacy and educational initiatives, focusing on areas critical to the realisation of human rights and democracy in South Africa and Africa in general (ESCR-Net).

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The death penalty in the Cape Provincial Division: 1986-1988
(South African Journal on Human Rights, 1989) Julia, Sloth-Nielsen; Christina, Murray
This article presents the data that we collected in four tables. These are explained in the first section below. The second part of the article examines three issues that emerge from the data. First, we note the disparity in the use of the death penalty by individual judges and argue that, in part at least, this must be attributed to the personal disposition of judges. Then we examine the figures relating to appeal procedures and conclude that the procedure should be reformed. Thirdly we comment on the reprieve process. The last section of the article suggests areas in which future research on the death penalty may fruitfully be conducted.
The scientific career of the zoologist Max Wilhelm Carl Weber (1852—1937)
(Bijdragen tot de Dierkunde, 1993) Pieter, Florence F.J.M.; de Visser, Jaap
It is shown that the pinnacle of Max Weber’s scientific career was the organization and leadership of the Siboga Expedition to the former Netherlands East Indies (now Indonesia)in the years 1899—1900. Before that time, as Professor of both General and Special Zoology at the University of Amsterdam, he had devoted his research mainly to the anatomy of mammals, which resulted in the fundamental reference work Die Säugetiere published in first edition in 1904. Just before his departure with the Siboga Expedition Weber was appointed Extraordinary Professor of Special Zoology in Amsterdam. This gave him more time to edit the results of the Siboga Expedition and for taxonomic studies, especially on the fishes of the Indo- Australian Archipelago. Nevertheless he kept a keen interest in generalzoology, which resulted in his extensive contribution to the modern textbook Lehrbuch der Biologiefür Hochschulen co-authored by Moritz Nussbaum and Georg Karsten, published in first edition in 1911. Weber retired in 1921 and by the time he died in 1937 about 95% of the scientific results of the Siboga Expedition had been published - an outstanding achievement.
Juvenile justice review 1994-1995
(South African Journal of Criminal Justice, 1995) Julia, Sloth-Nielsen
This review of the state of juvenile justice in South Africa introduces a new section to this journal in which annual developments relating to law and policy in the field of juvenile justice will be examined. Juvenile justice has long been a Cinderella topic in the South African legal and academic arena. Legislation relating to juvenile justice is spread out in various sections in the Criminal Procedure Act 1977, the Child Care Act, and the Correctional Services Act. No textbook for those practitioners concerned with juvenile justice has yet been published, and journal articles on aspects relating to juveniles in trouble with the law are sporadic. However, juvenile justice issues have for some years been the focus of media attention. Activists have drawn attention to the plight of children detained in prisons and police cells in particular. At an international seminar hosted by the Community Law Centre in 1993, the matter of comprehensive and radical legislative reform was mooted (see Report of the International Seminar on 'Children in Trouble with the Law', Community Law Centre, 1995). An outcome of the conference was the establishment of a drafting team, which set to work to produce innovative proposals for a new juvenile justice system. Published in November 1994 by the Drafting Consultancy as 'Juvenile Justice for South Africa: Proposals for Policy and Legislative Change' (discussed in D Pinnock, A Skelton, R Shapiro (1994) 3 SACJ 338-347), the document has inspired much of the current debate about legislative and policy reform for juveniles who come into conflict with the law.
Juvenile justice review 1996
(South African Journal of Criminal Justice, 1996) Julia, Sloth-Nielsen
This review follows the 1995 review, the first in this journal, and similarly reviews the period until 30 September 1996. In the year presently under review the principle focus of juvenile justice concern was yet again the matter of pre-trial detention of arrested juveniles. The question as to where juveniles should be held pending finalization of criminal trials was the subject-matter of legislative reform in May 1996, when the Correctional Services Amendment Act 14 of 1996 was promulgated with immediate effect. The genesis and intended purport of this amendment is described in J Sloth Nielsen 'Pre-trial detention of children revisited: amending section 29 of the Correctional Services Act' (1996) 9 SACJ60. The content of the legislation allowing selected children to be incarcerated pending criminal trial will therefore not be raised again, but new practical and textual problems that have arisen with the implementation of the new section since May 1996 will be discussed.
Prosecutorial attitudes towards diversion
(NICRO National Office, 1998) Lukas, Muntingh
This report investigates a number of issues relating to diversion in an effort to make certain recommendations with regard to the running and management of diversion with a particular emphasis on the discretionary powers of prosecutors. The key questions are: To what extent does prosecutorial discretion influence decisions on diversion, and what systems or guidelines should be put in place to facilitate the expansion of diversion? The call for developing guidelines and criteria for diverting juvenile criminal cases is not a new one but there are other issues emerging such as who should apply these guidelines, and are prosecutors in fact positioned correctly in the system to make decisions regarding diversion? Other suggestions have been made with regard to decision-making such as giving Family Group Conferences a central role, but these have not found wide support to date.
Juvenile justice review 1997
(South African Journal of Criminal Justice, 1998) Julia, Sloth-Nielsen
The 1997 juvenile justice review charts developments in juvenile justice law in South Africa from November 1996 until October 1997. The most significant development during 1997 was the release of the issue paper on Juvenile Justice by the South African Law Commission (Issue paper No 9, Project 106). It is expected that a discussion paper on the same topic, including comparative material and draft legislation, will be circulated for comment during 1998. Thereafter, the report of the Law Commission will be presented to the Minister of Justice, and it is expected that legislation will then be adopted.
Juvenile justice review 1998
(South African Journal of Criminal Justice, 1999) Julia, Sloth-Nielsen; Lukas, Muntingh
The 1998 Juvenile Justice Review charts developments in juvenile justice law and practice in South Africa from October 1997 until October 1998. However, the release of the South African Law Commission discussion paper on juvenile justice (Project 106) on 14 December 1998 paves the way for an introduction to the contents of the discussion paper, and more especially an overview of the proposed new child justice system, as reflected in the draft bill attached to the discussion paper. The draft bill will be extensively debated with relevant departments, members of the profession, academics and other interested parties during 1999, with a view to producing a final report to the Minister of Justice during the latter half of 1999.
The Juvenile Justice Law Reform Process in South Africa: Can children's rights approach carry the day?
(Quarterly Law Review, 1999) Julia, Sloth-Nielsen
The impetus for juvenile justice law reform sprang originally from concern for the plight of child detainees in the dark days of apartheid in the 1980s. Children, who were at the forefront of the struggle for democratic rule and against apartheid, were liable to be detained without trial as punishment for their political activism. Many hundreds of children were detained without trial under the infamous security legislation of the time.' However, in the early 1990s, the political climate changed: detention without trial for political activity abated; a moratorium was placed on the execution of the death penalty; Nelson Mandela was released from prison; and negotiations for the transition to democracy began to get underway. Because the focus during the struggle had been to achieve basic human rights and the franchise for all South Africans, it was only after this period that attention turned from children as political detainees to securing procedural rights for children caught up in the conventional criminal justice system.
Social Citizenship: A Precondition for Meaningful Democracy
(Agenda: Empowering Women for Gender Equity, 1999) Sandra, Liebenberg
In 1959, the scholar, TH Marshall, analysed the historical development of those features that were vital to effective 'citizenship'. He viewed democratisation as a progression, spanning three centuries. Civil rights were the great achievement of the 18th Century, establishing the principle of the equality of all members of society before the law. Political rights emerged in the 19th Century, paving the way for increasingly broader participation in the exercise of political power. The fulfilment of democracy is the recognition of the concept of 'social citizenship' in the 20th Century.
NICRO diversion options
(National Institute for Crime Prevention and the Rehabilitation of Offenders, 2000) Lukas, Muntingh
Since 1994 South Africa has faced many challenges but none so widely experienced as crime. The day-to-day perceptions of living in South Africa are characterised by crime, violence and uncertainty. The criminal justice system is undeniably overloaded. Not surprisingly, the criminal justice system is seen by many to be biased, unrepresentative and unjust. However, there are signs of a shift away from punitive and retributive criminal justice practices towards rehabilitative, educational and restorative options. The aim of this booklet is to introduce and describe diversionary options available to the criminal justice system through NICRO. The booklet will simultaneously serve as an educational tool and a manual for practitioners in the field of criminal justice. In addition it will enable practitioners to start diversionary options in their own regions.
Making law: A guide to municipal councils
(Community Law Centre, University of the Western Cape, 2000) Steytler, Nico; de Visser, Jaap; Mettler, Johann
The first fully democratic municipal elections held on 5 December 2000 saw local government take its rightful place as the third sphere of government. Chapter seven of the Constitution has now come into full operation. A municipality now enjoys protected status as a legislative body. This means that it has the authority to make laws on local government matters without undue interference by other spheres of government. However, a constitutionally protected legislative authority brings with it a responsibility. The onus is now on municipalities to use the legal space provided by the Constitution in a manner that is democratic, accountable and developmental. This is certainly not an easy task: the challenges of sustaining, improving and extending service delivery and local democracy are great. The legislation that will guide newly elected councillors in the final phase of transformation further enables municipalities to be development agents and builders of democracy. This manual provides a useful guide for councillors to familiarise themselves with: • the scope of the legislative authority that their councils enjoy; • procedural aspects around making law; and • the legal and constitutional requirements relating to the content of by-laws. It will be a significant aid to councillors in their pivotal role as policyand lawmakers.
The emerging role of metropolitan cities in federations
(Forum of Federations, 2001) Steytler, Nico
City-regions or large metropolitan cities are a rapidly growing phenomenon in developing countries. They are also seen as a key mechanism to the development and growth trajectories of those countries, particularly in the age of globalisation. However, metropolitan governments are often not geared towards and enabled to perform this function due to political and structural constraints. These issues are also germane to metropolitan cities located in federations. The challenge facing federations is to adapt their legal/constitutional architecture and practice of intergovernmental relations to ensure that metropolitan cities can play their developmental role. The principles and practices of federalism are uniquely suited to accommodate the emerging role of metropolitan cities.
Roles and responsibilities of the municipal manager
(Community Law Centre, University of the Western Cape, 2001) de Visser, Jaap
renaming and transformation of local government structures. Coping with the new designation is probably the least important of the changes for the municipal manager. One of the key challenges in this respect is defining the roles of the municipal manager in relation to the executive committee or executive mayor of the municipality. It is important to note, that against the backdrop a municipality’s constitutionally protected right to regulate its internal affairs (s 160(1) and (6) of the Constitution), the most critical player in shaping the role and responsibility of the municipal manager is the council itself. As the employer, the council determines what it expects of a municipal manager. However new legislation, such as the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act) and, more importantly, the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) contains important provisions with legal powers, duties and obligations. This article explores the legal provisions in the new legislation that have a bearing on the functioning of the municipal manager. A variety of Acts will be referred to in this paper. However, most of the provisions referred to are in the Systems Act. Therefore, references to the Act are references to the Systems Act. After dealing with some introductory issues, this paper will discuss the contracts and terms of reference, the municipal manager’s duties towards the council, his or her duties towards the public and the duties towards the administration.
Juvenile justice review 1999-2000
(South African Journal of Criminal Justice, 2001) Lukas, Muntingh; Julia, Sloth-Nielsen
The two years covered in this review have seen major developments in the juvenile justice sphere. Not only have several important judicial decisions been handed down, but the process of law reform has advanced significantly with the completion of the South African Law Commission's Report on Juvenile Justice which was presented to the Minister of Justice in August 2000. Draft legislation (entitled the Child Justice Bill) to establish a separate procedural system for children in conflict with the law is proposed in that document, and its contents are destined to be debated in Parliament in the second half of 2001.
Federal arrangements as a peacemaking device during South Africa's transition to democracy
(Publius: The Journal of Federalism, 2001-01-01) Steytler, Nico; Mettler, Johann
This article examines how federal arrangements were used during South Africa's transition to democracy to deal with the conflict posed by two important ethnic-based groupings: right-wing Afrikaners and Zulu nationalists. It will be argued that while limited federal arrangements were successful in containing the conflict, this aspect of South Africa's federal enterprise quickly faltered when the underlying conflicts and federal impetus dissipated. This case study, then, provides an interesting illustration of the dynamic quality of federalism; it can be a flexible political process that responds to the exigencies of the moment.
The courts and socio-economic rights: carving out a role
(ESR Review, 2002) Sandra, Liebenberg
Although the jurisprudence on the socio-economic rights in the Bill of Rights is still in its infancy, the number of cases coming before the courts is gathering momentum. In particular, the Constitutional Court judgment in the case of Government of the RSA v Grootboom 2000 (11) BCLR 1169 (CC) [the Grootboom case] is a landmark in socio-economic rights enforcement in South Africa. Several important insights can be garnered from the emerging jurisprudence, particularly from the Grootboom case. The Constitutional Court has confirmed that the socio-economic rights in the Bill of Rights place both a duty on the State and other important role players to respect these rights, and a positive duty on the State to protect, promote and fulfil them.
South Africa's evolving jurisprudence on socio-economic rights: An effective tool in challenging poverty
(Law, Democracy & Development, 2002) Sandra, Liebenberg
The drafters of the Constitution clearly envisaged a far-reaching role for it in the transformation of post-apartheid society.' Among the key aims of the Constitution is to "improve the quality of life of all citizens and free the potential of each person".4 This constitutional concern with the socioeconomic well being of people is especially evident in the entrenchment of a wide range of justiciable socio-economic rights in the Bill of Rights." If the socio-economic rights in the Constitution are to amount to more than paper promises, they must serve as useful tools in enabling people to gain access to the basic social services and resources needed to live a life consistent with human dignity. This paper focuses on the role of the courts in promoting the realisation of socio-economic rights in South Africa.
Universal access to social security rights: can a basic income grant meet the challenge?
(ESR Review, 2002) Sandra, Liebenberg
Access to social assistance for those unable to support themselves and their dependants is a fundamental human right enshrined in the Constitution. In March this year, the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, chaired by Prof. Viviene Taylor, released its consolidated report, entitled Transforming the present protecting the future. It recommends a range of policy measures aimed at building a comprehensive social security system in South Africa. The report's underlying philosophy is that social security reform should form part of a comprehensive social protection package. This package of developmental strategies and programmes should be designed to ensure, collectively, at least a minimum acceptable living standard for all citizens. Without such a core minimum of social provisioning, the constitutional promises of socio-economic rights, human dignity, equality and freedom will have a hollow ring.
South Africa's Heart of Darkness: Sex crimes and child offenders: some trends
(South African Crime Quarterly, 2003) Redpath, Jean
It is a source of great concern that the number of sexual offences committed by children is apparently on the increase. Given that the Child Justice Bill provides for a separate criminal justice process for children, and stricter provisions for child sex offenders, this article explores some of the relevant trends in this regard. The management of child sex offenders appears inconsistent, and very often no appropriate intervention is made at all. Calculating the actual incidence of child sex offenders is difficult, but some data suggests that children might be responsible for a significant proportion of sexual crimes committed against other children.
District municipalities : giving effect to shared authority in local government
(Law, Democracy & Development, 2003-01) Steytler, Nico
A new feature of local government outside metropolitan areas is the establishment of 47 district municipalities in December 2000. They share legislative and administrative powers with local municipalities in their area. Overlapping local government structures is not unknown in South Africa or elsewhere in the world. During South Africa's interim phase of local government transformation between 1995 and 2000, a two tier metropolitan system was established where both the metropolitan councils and a number of metropolitan sub-councils enjoyed jurisdiction in the same metropolitan area. Two-tier local government is also a feature in countries such as the United States, India, Germany and Spain.

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