Research Articles (Faculty of Law)

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2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)
(Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
South Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the ﬁ rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to ﬁ nalise the text of a ﬁ nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.
A child's right to identity in the context of embryo donation: part 1
(North-West Unversity, 2024) Bouah, Nicole; Jacobs, Carmel
This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity
Abusing the accused? Unpacking the use of entrapment in Uganda’s fight against corruption
(University of the Western Cape, 2018) Nanima, Robert Doya
In Uganda, an accused person enjoys a right to a fair trial. It is a requirement that the circumstances surrounding the collection and admission of evidence do not violate this right. This article argues that the use of entrapment in cases of corruption may lead to an abuse of the fair trial rights of an accused. The lack of a legislative framework regulating entrapment, the institutional entrenchment of entrapment in the criminal justice system and the inadequate guidance from judgments substantiate this argument. This article recommends amendments to the Criminal Procedure Code Act with a view to preventing abuse of the accused by agents of the criminal justice system.
Addressing wrongful convictions or miscarriages of justice in the BRICS nations
(University of Tyumen, 2022) Mujuzi, Jamil Ddamulira
For many decades, international human rights law has recognised the danger of wrongful convictions and miscarriages of justice. It is against this background that measures have been taken to prevent or combat wrongful convictions. Thus, Article 14 of the International Covenant on Civil and Political Rights provides for the right to a fair trial as well as compensation in the case of a miscarriage of justice. The BRICS nations have implemented measures at the national level to prevent or combat wrongful convictions before and during trial as well as after conviction.
Adjudication of Corporal Punishment and the Implementation of Sustainable Development Goal 16.2: An evaluation of the Kenyan Experience
(CEDRED Publications, 2020) Nanima, Robert
Under the laws of Kenya, the best interests’ principle is a key consideration in all matters affecting children. A topical issue is its’ report on the realisation of the SDG Agenda. Closely related to the same is Kenya’s adoption of the Sustainable Development Goals in 2015 – including target 16.2 concerning abuse, exploitation, trafficking and all forms of violence against and torture of children. This chapter evaluates Kenya’s approach to dealing with corporal punishment by the executive, legislature and judiciary in the context of SDG 16.2. The chapter uses three sub-claims to evaluate this argument. First, it situates SDGs in Kenya’s legislative framework. Secondly, it analyses the implementation of SDG 16.2 by the government. Thirdly, the chapter revisits the decision in Isaac Mwangi Wachira v Republic to showcase the courts’ approach to corporal punishment. A conclusion and recommendations follow. The Chapter adopts a desktop approach to evaluate available literature, legislation, policies, case law and similar sources. It is hoped that this law ignites academic debate on the efficacy of dealing with corporal punishment in Kenya.
The admissibility in Namibia of evidence obtained through human rights violations
(Pretoria University Law Press, 2016) Mujuzi, Jamil Ddamulira
Unlike the case in other African countries, such as South Africa, Kenya and Zimbabwe, the Namibian Constitution does not require courts to exclude evidence obtained through human rights violations if the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice. The only article in the Namibian Constitution dealing with the issue of evidence is article 12(1)(b), which provides that ‘[n]o persons shall be compelled to give testimony against themselves or their spouses, who shall include partners in a marriage by customary law, and no court shall admit in evidence against such persons’ testimony which has been obtained from such persons in violation of article 8(2)(b) Here of’. However, Namibian courts have invoked the criteria (set out in the Constitutions of South Africa, Kenya and Zimbabwe) in determining whether or not to admit evidence obtained through human rights violations. This article deals with the jurisprudence emanating from Namibian courts dealing with evidence obtained through human rights violations, and highlights the challenges that courts have grappled with in dealing with such evidence. The issues discussed are the relevant provisions relating to the admission of evidence obtained through violating human rights; the tests courts have developed to decide whether or not to admit evidence obtained through human rights violations; the right to remain silent at the time of arrest; the accused’s right not to incriminate himself at the trial; the right to consult a lawyer before making a statement; and evidence obtained through violating the rights to freedom from torture, cruel, inhuman or degrading treatment. It is recommended that Namibia may have to amend its Constitution to provide, inter alia, for criteria to be used in deciding whether or not to admit evidence obtained through human rights violations.
The admissibility of criminal findings in civil matters: Re-evaluating the Hollington judgment
(Pretoria University Law Press, 2021) Njoko, Thulisile Brenda
In Hollington v Hewthorn & Co Ltd 2 1943 All ER 35 it was held that a finding of a criminal court did not have any probative value in a subsequent civil action and was inadmissible as evidence. Despite the case being one of English origin, the South African courts have largely adopted this ruling as one grounded in our common law. In this paper, the judgment in the Hollington case is critically analysed in order to determine its continued applicability in the face of South Africa's existing law of evidence and the Constitution of the Republic of South Africa, 1996 ("the Constitution"). It is argued that in light of the existing law, this rule no longer finds application in South Africa.
The admissibility of evidence obtained through human rights violations in Mauritius
(Juta Law Publishing, 2018) Mujuzi, Jamil Ddamulira
The Constitution of Mauritius, unlike those of South Africa, Zimbabwe and Kenya, does not guide courts on the issue of the admissibility of evidence obtained through human rights. Jurisprudence from Mauritius shows courts have grappled with the issue of establishing the criteria that have to be followed in determining whether or not to admit evidence obtained through human rights violations. Courts have limited their jurisprudence to a few rights: the right to freedom from torture; the right to remain silent; the right against self-incrimination; and the right to counsel. The jurisprudence is inconsistent on the issue of whether or not evidence obtained through human rights violations should be automatically excluded. In some cases courts have held that such evidence is automatically inadmissible whereas in others courts have held that such evidence may be admissible. It is recommended that the best approach would be to only exclude such evidence if its admission would render the trial unfair or would be detrimental to the administration of justice.
Admission of confessions in Uganda: Unpacking the theoretical, substantive and procedural considerations of the Supreme Court
(Makerere University, 2017) Nanima, Robert Doya
The Uganda legal regime relies on the discretion of the courts in dealing with improperly obtained evidence. While various theories explain the need to exclude evidence, understanding their rationales sheds light on evaluating why the courts deal with this kind of evidence in the way they do. This article offers an assessment of selected decisions handed down by Uganda’s Supreme Court between 1995 and 2015 with regard to evidence improperly obtained through confessions. It seeks to establish the underlying theoretical considerations of the decisions, how the courts address aspects of procedural and substantive justice, and whether there is a consistent developed jurisprudence. This analysis, therefore, supports the need for reform
Advancing regional integration through the free movement of persons in the Southern African Development Community (SADC)
(Nelson R Mandela School of Law, 2020) Lenaghan, Patricia; Amadi, Victor
The level at which the Southern African Development Community (SADC) region has managed to regulate the free movement of persons, so as to reduce or completely eliminate, rigorous administrative requirements poses a challenge in so far as the ease of services supply is concerned. The Draft Protocol on the Facilitation on the Movement of Persons of 2005, remains inoperative, leaving national immigration laws to regulate the movement of people in the region. This lack of progress may indicate a lack of political will towards creating an effective large-scale integrated community. Intra-regional trade in aspects relating to services in the SADC is at a low as will be seen in the background and introductory section of this paper. This paper seeks to argue for the adoption of a less restrictive approach towards movement of people as a strategy to further boost regional trade in the SADC.
Africa and the International Criminal Court
(Human Rights and Peace Centre, 2012) Ogunfolu, Adedokun; Assim, Usang Maria
Since the establishment and functioning of the ICC in 2002, the work of the ICC has generated a lot of debate, criticisms and controversy. This is largely due to the perception that, as far as the prosecution of cases before the ICC is concerned, the establishment seems to have been functioning most actively against human rights atrocities in African states while the situations in other regions of the world receive much less attention. Despite the ongoing debates around this issue, it is quite important to note that the practice and jurisprudence of the ICC have resulted in a number of significant developments in the field of international law generally and international humanitarian law in particular. This article seeks to highlight some of the major contributions that have been made to the development of the relevant fields of law by the ICC, and gives a general overview of the cases before the ICC which emanated from Africa.
Africa, prisons and COVID-19
(Oxford University Press, 2020) Muntingh, Lukas
Africa’s prisons are a long-standing concern for rights defenders given the prevalence of rights abuses, overcrowding, poor conditions of detention and the extent to which the criminal justice system is used to target the poor. The paper surveys 24 southern and east African countries within the context of COVID-19. Between 5 March and 15 April 2020 COVID-19 had spread to 23 southern and east African countries, except Lesotho. The overwhelming majority of these countries imposed general restrictions on their populations from March 2020 and nearly all restricted visits to prisons to prevent the spread of the coronavirus. The pandemic and government responses demonstrated the importance of reliable and up to date data on the prison population, and any confined population, as it became evident that such information is sorely lacking. The World Health Organization recommended the release of prisoners to ease congestion, a step supported by the UN Subcommittee on Prevention of Torture. However, the lack of data and the particular African context pose some questions about the desirability of such a move. The curtailment of prison visits by external persons also did away with independent oversight even in states parties to the Optional Protocol to the Convention against Torture (OPCAT). In the case of South Africa, prison monitors were not listed in the ensuing legislation as part of essential services and thus were excluded from access to prisons. In the case of Mozambique, it was funding being placed on hold by the donor community that prevented the Human Rights Commission from visiting prisons. The COVID-19 pandemic has highlighted long-standing systemic problems in Africa’s prisons. Yet African states have remained remarkably reluctant to engage in prison reform, despite the fact that poorly managed prisons pose a significant threat to general public health care.
The African Commission on Human and People's Rights and the woman question
(Springer, 2016) Durojaye, Ebenezer; Oluduro, O.
This paper proposes that in developing jurisprudence on women's rights, the African Commission will need to ask the woman question particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women's rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence the African Commission must ask the African woman question when dealing with cases on the enjoyment of women's fundamental rights.
The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights
(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil Ddamulira
African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples' Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples' Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee' rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments.
The Alexandra township de-densification project during the Covid-19 crisis: Challenges and potential lessons
(University of the Western Cape, 2022) Phakathi, Mpumelelo
In response to the Covid-19 (hereafter referred to as ‘virus’) pandemic, the South Africa government established different measures to try to slow down the spread of the virus. One of the strategies was to focus on population density, specifically in informal settlements. The argument was that high population density in informal settlements could increase the risk of transmission of the virus. The Bloomberg CityLab reported in 2020 that urban density does play a role in the transmission of the virus.1 South Africa is no exception, as its major metropolitan areas have borne the brunt of Covid-19 infections, with Cape Town and Johannesburg classified as epicentres.
All roads lead to property: Pashukanis, Christie and the Theory of Restorative Justice
(North-West University, 2013) Koen, Raymond
The name of Evgeny Pashukanis, the Bolshevik jurisprudent, is linked umbilically to the so-called commodity form theory of law. In his Law and Marxism Pashukanis develops a general theory of law which turns upon the relationship between the commodity form and the legal form. The fundamental postulates of the general theory are, firstly, that the legal form is the analytical fulcrum of the general theory of law, and secondly, that the commodity form is the key to the analysis of the legal form. Law and Marxism, which first appeared almost ninety years ago, continues to occupy pride of place in the Marxist analysis of the law. Indeed, if there is a classical Marxist theory of law it is the so-called commodity form theory of law.
An overview of recent changes to corporate governance frameworks as it pertains to executive remuneration
(University of Fort Hare, 2012) Koornhof, Pieter G.J.
An analysis of professor Lourens du Plessis’ early (pro-life) and later (prochoice) perspectives on abortion
(Nelson Mandela University, 2016) Moosa, Najma
Abortion, or termination of pregnancy, albeit in gradations from most to less restrictive to unrestricted, has always been legally allowed in South Africa. This questions the need for the introduction of new law. Legalisation of abortion has reduced abortion to a form of failed contraception. Illegal abortions motivated new law, as well as research, Professor Lourens Marthinus du Plessis’ 1 constitutional argument favouring women’s (reproductive) right to abortion. Yet, illegal abortions continue as before democracy when the seemingly Christian, racially-motivated law, was flouted by white and black women alike. The Constitution adopts a neutral position on the right to life, but is decidedly pro-abortion. This does not imply that a constitutional challenge, which has yet to occur, seeking to amend the current status quo and to provide protection to an unborn, may be an exercise in futility. This article is written in honour of, and analyses the role and early “pro-life” views of the now retired Du Plessis as a white Afrikaner male, husband, father and proud grandfather, schooled in a traditional, conservative strand of Christianity, and as an anti-apartheid constitutional lawyer and drafter – to determine whether his liberal political views are compatible with his moral views and whether they may have since changed.
An analysis of the contribution of the African human rights system to the understanding of the right to health
(African Human Rights Law Journal, 2021) Durojaye, Ebenezer
The right to health is one of the important rights guaranteed in international and regional human rights instruments. Over the years the content and nature of this right have evolved through the works of scholars and clarifications provided by human rights treaty bodies. Focusing on the work of the African Commission on Human and Peoples’ Rights, this article assesses the contributions of the African human rights system towards the advancement of the right to health. It outlines some of the major achievements in terms of normative framework as exemplified by the provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the African Youth Charter and the Protocol to the African Charter on the Rights of Older Persons. In addition, it highlights the clarifications provided by the African Commission charged with interpreting the African Charter on Human and Peoples’ Rights and the African Women’s Protocol. These include the adoption of resolutions, General Comments, guidelines and important decisions which provide a nuanced understanding of the right to health in the African context. The article identifies challenges militating against the full enjoyment of the right to health, including sexual and reproductive health in the region, such as the slow ratification of important human rights instruments, the lack of political will for law
An analysis of the duty to reasonably accommodate disabled employees: a comment on Jansen v Legal Aid South Africa
(University of the Western Cape, 2020) Gresse, Estie; Mbao, Melvin Lm
Persons with disabilities are a historically marginalised minority, who have the capacity to make a valuable contribution in the workplace. Recent case law suggests that the duty to reasonably accommodate disabled employees remains a conundrum for employers in South Africa. In Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018) the Labour Appeal Court had an opportunity to make a definitive pronouncement on the meaning and reach of the employer's duty to reasonably accommodate a disabled employee. Even though the duty to reasonably accommodate disabled employees is set out in our legislative and policy frameworks, there is a need to have a more detailed framework. The Constitutional Court is yet to hear a case on the duty of employers to provide reasonable accommodation to employees with disabilities, and until we have such a precedent, more and more employees with disabilities will continue to suffer at the hands of their employers. Both the Code of Good Practice, as well as the Technical Assistance Guidelines , published by the Department of Labour, have gone "relatively unnoticed and unread" in the workplace. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code, as well as in the Technical Assistance Guidelines. Employers need to undertake proper investigations, with the assistance of experts if needs be, to investigate an employee's incapacity.

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