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Item The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil DdamuliraAfrican 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.Item All roads lead to property: Pashukanis, Christie and the Theory of Restorative Justice(North-West University, 2013) Koen, RaymondThe 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.Item An Analysis of the Islamic Law Based Developments in the South African Law of Succession(2020) Abduroaf, MuneerSouth Africa is a secular state with a constitution that guarantees the right to freedom of religion and the right not be discriminated against on religious basis. Over three quarter of a million Muslims live in South Africa today. There has (to date) been no legislation enacted in South Africa that gives effect to Islamic personal law. This article analyses the accommodation of the right of South African Muslims married in terms of Islamic law to inherit in terms of South African law as a result of the developments in the case law and contextual interpretation of the existing statutes by the South African courts. This article first analyses the recent developments and the existing position with regard to the right to inherit under the law of testate succession. This is followed by an analysis of the right to inherit under the law of intestate succession. The developments are then compared to the position in Islamic law of testate and intestate succession. The article concludes with a finding that the developments are not consistent with Islamic law. A recommendation is made that South African Muslims should draft and execute Islamic wills in order to ensure that their estates devolve in terms of Islamic law upon their demise. A further recommendation is made that in line with Section 15(3) of the South African Constitution, the South African government should consider enacting legislation that gives effect to the Islamic law of succession.Item Application of the Islamic Law of Succession in South Africa(Researchgate, 2020-10) Abduroaf, MuneerMuslims have been living in South Africa for over 300 years. There are over 750 000 Muslims living in South Africa today. These persons constitute a minority religious group in a non-Muslim country. Muslims are required in terms of their religion to follow Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims can however make use of existing South African law provisions in order to apply certain Islamic laws within the South African context. This article looks at the practical application of the Islamic law of succession and administration of estates within the South African context by way of a fictitious scenario. It highlights some of the problem areas when a Muslim testator or testatrix bequeaths his or her estate in terms of Islamic law by means of a will (Islamic will).Item Bank secrecy: Implementing the relevant provisions of the United Nations Convention against corruption in South Africa(University of the Western Cape, 2016) Mujuzi, Jamil DdamuliraFor many decades South African law has recognised a bank's duty to keep its client's information confidential. This is popularly known as bank secrecy. However, this duty is not absolute. National and international law provide for circumstances in which a bank may disclose information relating to a client. The UN Convention against Corruption, which South Africa ratified in 2004, has three Articles which deal directly with the issue of bank secrecy, namely, Articles 31(7), 40 and 46(8). The purpose of this essay is to discuss whether South Africa has measures in place to give effect to Articles 31(7), 40 and 46(8) of the UN Convention against Corruption.Item Cave pecuniam: Lawyers as launderers(North-West University, 2012) Hamman, Abraham; Koen, RaymondIn South Africa there is something almost sacrosanct about an attorney's trust account. It is the prescribed destination of all funds paid in trust by a client to an attorney. Clients tend to have complete confidence in the fact that their money is entrusted thus. Its very designation as trust money encourages such confidence. The trust account is also the account in respect of which the Attorneys Fidelity Fund requires an annual audit to determine if an attorney is awarded the Fidelity Fund Certificate which he requires to practise. All in all, the trust account is the barometer of the good standing of a law practice, and the index of its trustworthiness. Hence the aura of venerability which surrounds it.Item Co-trusteeship and the joint- action rule in South African trust law(Elsevier, 2013) du Toit, FrancoisThis article examines the fundamental rule of South African trust law that co-trustees must always act jointly in regard to trust administration. It highlights the rule's foundation, but also contextualizes some of the practical problems associated with the rule's operation. In particular, the article focuses on South African courts' treatment of the joint-action rule, and shows that judicial engagement with the rule has not been satisfactory in all respects. The article casts some light on possible future developments in regard to co-trusteeship in South African law.Item Comparing the application of the islamic law of succession and administration of estates in Singapore and South Africa(Researchgate, 2020-04) Abduroaf, MuneerThis article investigates how the Islamic law of succession and administration of estates is applied in Singapore and South Africa with regard to the “Islamic will”. This kind of will includes a provision where the testator or testatrix states that his or her estate must be distributed in terms of the Islamic law of succession. This requires an Islamic law expert or an Islamic organisation to draft an Islamic distribution certificate stating who the beneficiaries of the person are. The distribution certificate is drafted after the testator or testatrix has died. An Islamic distribution certificate within the Singaporean context is specifically compared with one in the South African context. This article looks at whether features found in the Singaporean model can be applied to the South African context. An overview of the Muslim population in Singapore and South Africa is presented by way of introduction. This is followed by an examination of the constitutional and international obligations of the two countries in light of their equality provisions, and a comparative analysis of the Islamic law of succession and administration of estates in the two countries. The focus areas looked at are liability claims, testate succession claims and intestate succession claims. A brief analysis of the findings and concluding remarks are made at the end of the article.Item The conditional early release of offenders transferred from the Special Court for Sierra Leone to serve their sentences in designated states: some observations and recommendations(Juta Law, 2014) Mujuzi, Jamil DdamuliraThe Special Court for Sierra Leone (SCSL) (now the Residual Special Court for Sierra Leone) convicted various offenders of crimes, such as war crimes and crimes against humanity. These convicted offenders were sentenced to prison terms ranging from two to fifty years' imprisonment. The SCSL signed sentence-enforcement agreements with Sweden, Finland, Rwanda and the United Kingdom. On the basis of these enforcement agreements, those convicted by the SCSL were transferred to serve their sentences in Rwanda and the United Kingdom. Some of those convicted of contempt of court served their sentences in Sierra Leone. The enforcement of the sentences is governed by Articles 227 and 238 of the Statute of the SCSL, read with Rules 103 and 124 of the Rules of Procedure and Evidence which provide for the place of imprisonment of the offenders convicted by the SCSL and the issue of pardon respectively. The conditional early release (what is known as parole in some countries) of the offenders is governed by the Practice Direction on the Conditional Early Release of Persons Convicted by the Special Court for Sierra Leone. As at the end of 2014, only two offenders - Moinina Fofana and Eric Koi Senessie - had been granted conditional release by the President of the SCSL. The purpose of this article is to analyse the issues emerging from these two cases. Before I deal with those issues, it is important to draw a distinction between the transfer of offenders between countries and the transfer of offenders from international criminal tribunals, such as the SCSL, to sentence enforcement states.Item The constitutional family in the Law of Succession(Juta Law, 2009) du Toit, FrancoisThis article traces the development of the constitutional family in the South African law of succession through a synopsis of Constitutional Court and High Court judgments on the application of the Intestate Succession Act and the Maintenance of Surviving Spouses Act beyond the confines of the traditional conception of 'family'. It also investigates significant legislative developments that impacted on the establishment of the constitutional family in the South African law of succession.Item Constitutionalism, public policy and discriminatory testamentary bequests - a good fit between common law and civil law in South Africa's mixed jurisdiction(Tulane European & Civil Law Forum, 2012) du Toit, FrancoisThis article investigates South African courts' treatment of discriminatory testamentary bequests in the pre- and post-constitutional eras. It shows a change in judicial attitude towards such bequests from an accommodating, tolerant stance, purportedly founded on South Africa's Roman-Dutch common law, during the pre-constitutional era to a firm normative approach with a focus on equality and non-discrimination during the post-constitutional years. The Article assesses critically this post-constitutional approach against precedent and scholarship from Common Law and Civil Law jurisdictions and asks whether, given the mixed nature of its legal system, the current South African position in regard to such bequests achieves a good fit between the Common Law and Civil Law.Item The constitutionally bound dead hand? The impact of constitutional rights and principles on freedom of testation in South African law(Juta, 2001) du Toit, FrancoisThis article analyses critically the impact of constitutionalism on freedom of testation and its limitation in South African law. It proposes the judicial utilisation of a 'constitutionally-founded boni mores criterion' in addressing particularly testamentary forfeiture clauses and charitable testamentary bequests.Item Criticism of the testamentary undue influence doctrine in the United States: lessons for South Africa?(Lousiana State University Law Center, 2013) du Toit, FrancoisThis article analyzes undue influence in the South African law of wills in light of scholarly criticism of the testamentary undue influence doctrine in the United States. The Article assesses particularly whether the so-called “undue influence paradox”, identified in American scholarship, is manifest in the South African law of wills: is testamentary undue influence’s role as protector of testamentary freedom undermined in order to realize economic family protectionism? The Article proceeds, with due recognition of the differences between the American and South African legal traditions, from American scholars’ conceptualization of the paradox and their views on other complexities associated with the doctrine, to an exposition on the conceptualization, the statutory regulation, and the judicial utilization of testamentary undue influence in South Africa. The Article determines whether or not the South African legal position conforms to some or all of the assertions made in regard to the undue influence paradox and further complexities associated with the testamentary undue influence doctrine in the American context. The Article provides a mixed jurisdiction’s response to the call for the abolition of the testamentary undue influence doctrine in recent scholarship from the United States.Item Diversion in the South African criminal justice system: emerging jurisprudence(Juta Law, 2015) Mujuzi, Jamil DdamuliraOn 1 April 2010 the South African Child Justice Act (CJA or the Act) commenced. The long title of the Act states, inter alia, that the purpose of the Act is 'to establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic'. The Act provides, inter alia, that a child who has committed any offence may be diverted from the criminal justice system. Case law has started emerging from South African courts dealing with some of the sections of the Act. The purpose of this article is to highlight how courts have interpreted or applied some of the sections of the Act.Item Domestic courts and the promotion and protection of the right to freedom from torture in Southern African development community countries(University of Fort Hare, 2013) Mujuzi, Jamil DdamuliraThe right to freedom from torture is protected not only in the constitutions of all SADC countries but also in some of the regional and international human rights instruments that have been signed, ratified or acceded to by these countries. This article has discussed the measures taken by courts in different SADC countries to protect the right to freedom from torture. The author has focused on the following issues and made recommendations where appropriate: the definition of torture, the difference between torture on the one hand and cruel, inhuman and degrading treatment on the other hand, the status of the right to freedom from torture in the eyes of the courts, the factors that courts consider as creating a conducive environment for torture, the issue of deporting or extraditing a person to a country where he or she could be subjected to torture, proving allegations of torture, some forms of punishment that have been declared as torture, and the admissibility of evidence obtained through torture.Item Erfregtelike onwaardigheid: Enige lesse te leer vir die Suid-Afrikaanse reg uit die Nederlandse reg?(Juta, 2012) du Toit, FrancoisThe regulation of unworthiness to inherit in Book 4 of the (new) Dutch Civil Code (2003) occasioned numerous interpretation and application challenges to Dutch courts, notaries and inheritance scholars. These challenges correspond greatly with many of the contentious issues regarding unworthiness to inherit in modern South African law. This article investigates certain aspects of the Dutch legal position with a view to commenting on, and suggesting solutions to, corresponding challenges in the South African context. Issues such as the effect of unworthiness to inherit on matrimonial property claims as well as maintenance claims against a deceased estate, the suitability and appropriateness for South African law of a “forgiveness provision” that eliminates unworthiness similar to the one included in the Book 4 of the Dutch Civil Code and the regulation of unworthiness to inherit in the context of euthanasia are analysed from a legal-comparative standpoint.Item Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa(Pretoria University Law Press (PULP), 2015) Mujuzi, Jamil DdamuliraAlthough South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples' Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment.Item The fiduciary office of trustee and the protection of contingent trust beneficiaries(Juta Law, 2007) du Toit, FrancoisThis contribution focuses on two matters pertinent to the office of trustee. First, the fiduciary nature of the office of trustee is investigated, with particular reference to the essence of a trustee’s fiduciary duty. Secondly, the protection afforded by a trustee’s fiduciary office to trust beneficiaries, particularly contingent beneficiaries, is examined. It is shown that the protection enjoyed by contingent trust beneficiaries is frequently ascribed to their “vested interests in the proper administration of a trust” (which, it is submitted, means that each contingent trust beneficiary enjoys a personal right against the trust’s trustee for proper trust administration as counterpart to such trustee’s fiduciary duty). The question is then posed whether, as some commentators contend, such an interest in or right to proper trust administration allows extending a direct action, through the actio legis Aquiliae, to contingent trust beneficiaries for claiming delictual damages from an errant trustee in breach of trust.Item From archaic to modern law: Uganda's Refugees Act 2006 and her international obligations(The Human Rights and Peace Center (HURIPEC), 2008) Mujuzi, Jamil DdamuliraUganda enacted its first law to deal with refugees in 1955, which was repealed in 1960 by the Control of Alien Refugees Act. While the 1960 law was still in force, Uganda ratified international and regional human rights instruments. In 1995 a new Constitution with a comprehensive Bill of Rights was promulgated. These developments made the 1960 Act incompatible with Uganda’s international, regional and national human rights obligations. As a result, in May 2006 Uganda passed the Refugees Act which integrates its international and regional obligations into the refugee legal regime. This article critically reviews the 2006 Refugees Act and Uganda’s refugee obligations in light of its international human rights obligations. The article argues that the 2006 Refugees Act substantially reflects Uganda’s international and regional obligations under the relevant refugee and human rights instruments, but finds that some questions, such as the definitions of ‘spouse’ and ‘public order’ remain unanswered.Item How should the most evil of law breakers be punished: The death penalty vs life imprisonment in Uganda, 1993 – 2009(The Human Rights and Peace Center (HURIPEC), 2011) Mujuzi, Jamil DdamuliraArticle 22(1) of 1995 Constitution of Uganda protects the right to life and provides that it can only be taken away in the ‘execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.’ The death penalty is imposed for some crimes such as murder, treason and terrorism. During the constitution making process between 1989 and 1994 and when the constitution was being amended in 2005, there were arguments that the death penalty should be abolished and replaced with life imprisonment which means imprisonment until death. These attempts were unsuccessful. The constitutionality of the death penalty was unsuccessfully challenged in both the Constitutional Court and the Supreme Court. However, both courts appear to hold the view that if the death penalty is to be abolished, it should be substituted with life imprisonment. This article highlights the attempts and the arguments that have been made to abolish the death penalty in Uganda. The author argues, inter alia, that should the death penalty be abolished and substituted with life imprisonment, offenders sentenced to life imprisonment should not be detained until death as life imprisonment without the possibility of release has been found to be cruel and inhuman in some African countries such as South Africa and Namibia. Because the death penalty is no longer mandatory in Uganda and it is likely to be replaced by life imprisonment, the author discusses the objectives of punishment that courts in Uganda have always emphasized in sentencing offenders to life imprisonment.
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