bluuebunny/crossref_metadata_2025 huggingface dataset:
The South African Defence Review (2012) and Private Military / Security Companies (PMSCs): Heralding a Shift from Prohibition to Regulation?
Authors: Juma Laurence , Tsabora James
Published: May 2017

This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective
Authors: Kruger Johan , Tshoose Clarence Itumeleng
Published: May 2017

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation.

 

The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights.

 

Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level.  It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.
Improving Access to Justice Through Compulsory Student Work at University Law Clinics
Authors: Holness Dave
Published: May 2017

In this paper an analysis is offered of compulsory so-called "live client" clinical legal education as part of the LLB as a means of improving access to justice for the indigent. This study first explores the factors which motivate which the establishment of a year’s compulsory community service during the LLB studies, and making clinical legal education compulsory. The motivation includes inducing law students and graduates to aid in the achievement of access to justice. The research then focuses on what the value of community service is in higher education generally.

 

In the South African civil justice system many ordinary people cannot afford to use the courts because of the expense involved, or because they are ignorant of their rights.  This is particularly the case in civil as opposed to criminal matters, as legal aid is more frequently focused on criminal than on civil matters in this country. This paper will consider the role which senior law students may play in rendering pro bono work as part of clinical legal education in their LLB studies. In this regard particular focus will be made on the University of KwaZulu-Natal (UKZN), the only university offering law studies in greater Durban.

 

As for pro bono work by students during their LLB, consideration could be given to making clinical legal education a compulsory part of such students' curricula. Possible compulsory community service for law graduates (ie post-LLB) as envisaged in the proposed Legal Practice Bill falls beyond the ambit of this paper.
Harnessing Intellectual Property for Development: Some Thoughts on an Appropriate Theoretical Framework
Authors: Ncube Caroline Bongiwe
Published: May 2017

This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users.

 

National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound.

 

Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear.
Arbitrary Deprivation of an Unregistered Credit Provider's Right to Claim Restitution of Performance Rendered: Opperman v Boonzaaier (24887/2010) 2012 ZAWCHC 27 (17 April 2012) and National Credit Regulator v Opperman 2013 2 SA 1 (CC)
Authors: Brits Reghard
Published: May 2017

The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution – the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements – for instance, agreements concluded by unregistered credit providers – so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no "sufficient reason" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the "confused and confusing" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason. The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as "property" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals.
Biodiversity and Climate Change: Linkages at International, National and Local Levels
Authors: Paterson Alexander
Published: May 2017

At the tenth Convention on Biological Diversity (CBD) Conference of the Parties (COP) held in Nagoya 2010, the parties agreed that they would by 2020 enhance 'ecosystem resilience and the contribution of biodiversity to carbon stocks …, through conservation and restoration, including restoration of at least 15 per cent of degraded ecosystems, thereby contributing to climate change mitigation and adaptation and to combating desertification' (Aichi Target 15, Decision X/2 (Strategic Plan for Biodiversity 2011-2020)).
Managing Family Justice in Diverse Societies
Authors: Rautenbach Christa
Published: May 2017

This contribution reviews the contents of the 17 chapters that make up the bulk of the book Managing Family Justice in Diverse Societies recently published by Hart Publishing in the Oñati International Series in Law and Society.
Constitutionalising The Right to Legal Representation at CCMA Arbitration Proceedings: Law Society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)
Authors: Selala Koboro J
Published: May 2017

Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.
Editorial
Authors: Rautenbach Christa
Published: May 2017

This edition of PER consists of eight articles, four notes and two book reviews covering a range of topics. The first article is by Oliver Fuo, a postgraduate student of the North-West University (Potchefstroom Campus). His contribution deals with the status of executive policies and the basis for their judicial enforcement in a constitutional and socio-economic context. He demonstrates that "executive" policies may be perceived to have the force of law, especially where their enforcement may be imperative for the realisation of socio-economic rights. Secondly, Ig Rautenbach of the University of Johannesburg considers empirical data on the effectiveness of the Constitutional Court during the period 1995 to 2012. He focuses on the following three questions: "How did the cases reach the court", "why did the court refuse to consider some of them", and "how often did the court invalidate laws and actions". In the third article, Magda Slabbert and Hendrik Pienaar, follows a multi-disciplinary approach to discuss the legal position of the locum tenens that is often used by medical practitioners in private practice. They recommend that a locum tenens be appointed as an independent contractor rather than an employee, and argues that the onus to ensure that he or she is registered and fit to practice rests on the principal. The fourth article by Carika Keuler deals with the "pay now, argue later" rule in terms of the Tax Administration Act 28 of 2011. She is of the opinion that the Act fails to address the imbalance between the duties of the South African Revenue Services and the right of the taxpayer to access the courts. JC Knobel, the author of the fifth article, gives an overview of the conservation status of eagles in South Africa. He discusses the existing legal framework and makes a number of recommendations to improve their legal status. Two authors, Laurence Juma and James Tsabora, both from Rhodes University, discuss the possibility of South Africa enacting a new law regulating private military and/or security companies, which they refer to as PMSC's. The seventh article by Johan Kruger and Clarence Tshoose gives a South African perspective on the impact of the Labour Relations Act 66 of 1995 on minority trade unions. In the eight place, Dave Holness offers an analysis of compulsory "live client" clinical legal education as part of the LLB course as a means of improving access to justice for the indigent.
What Intellectual Property Lawyers can learn from Barbra Streisand, Sepp Blatter, and the "Coca-Cola Cry-Baby": Dealing with "Trademark Bullying" in South Africa
Authors: Louw André M
Published: May 2017

This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is a good idea to enforce it always, and to the hilt. Discretion may be nine parts of possession". It provides some prominent, recent examples of trademark bullying or overly-aggressive enforcement in the IP law context. These examples are mainly from other jurisdictions but they are directly relevant to some of the IP law challenges present in South Africa at the moment.  The article further examines why lawyers and rights' holders engage in trademark bullying (why it's done), and start to deal briefly with some of the legal implications. A future article is to examine the legal aspects of trademark bullying in much more detail and considers its legitimacy within the context of IP law, more generally, and some other areas of law, more specifically.
Yet Another Call for a Greater Role for Good Faith in the South African Law of Contract: Can we banish the Law of the Jungle, while avoiding the Elephant in the Room?
Authors: Louw Andre M
Published: May 2017

This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how arguments based on good faith have fared in the Constitutional Court to date, and the prospects for law reform to emanate from that court in the near future. The author suggests an understanding of good faith which he believes is in line with the Constitution of the Republic of South Africa, 1996 and argues that in terms of such an understanding of a robust good faith doctrine the legal fraternity or the courts can avoid some of the dangers that the judges of the Supreme Court of Appeal have warned about in this context in recent years. The author shares some concluding thoughts on the pressing need for law reform with respect to the role and presence of good faith in contracts.
A Critical Assessment of The Minimum Age Convention 138 of 1973 and The Worst Forms of Child Labour Convention 182 of 1999
Authors: Mavunga Rufaro Audrey
Published: May 2017

The International Labour Organisation (the ILO) has regulated child labour through the Minimum Age Convention and the Worst Forms of Child Labour Convention. Such conventions aim at the reduction and eventual elimination of harmful labour practices. After the ratification of such conventions, many countries have adopted domestic laws prohibiting harmful labour. Despite such regulations, statistics prove that children still participate in harmful work. The main purpose of this article is to assess the ILO child labour conventions critically, so as to provide further understanding of the provisions of the text of such instruments. While the aim of the Minimum Age Convention was the progressive eradication of child labour, the Worst Forms of Child Labour Convention recognises the existence of tolerable forms of child labour, and it seeks to eliminate the worst forms of child labour.
Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes
Authors: Orago Nicholas Wasonga
Published: May 2017

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.
A Critical Investigation of the Relevance and Potential of IDPS as a Local Governance Instrument for Pursuing Social Justice in South Africa
Authors: Fuo Oliver Njuh
Published: May 2017

Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities. The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework.
Achieving Equity in the Fishing Industry: The Fate of Informal Fishers in the Context of The Policy for the Small-Scale Fisheries Sector in South Africa
Authors: Young Michael
Published: May 2017

The implementation of the Marine Living Resources Act 18 of 1998 which governs fisheries management in South Africa is guided by a series of objectives. Chief amongst these are the need to ensure resource sustainability, promote economic growth and achieve equity in the fishing industry. Striking a balance among these competing imperatives is a necessary but also monumental task, one which South Africa has arguably failed to achieve to date. In particular, as far the equity objective is concerned, a group of fishers, including both subsistence and artisanal fishers, have continued to be marginalised and overlooked in the fishing rights allocation process. The Policy for the Small-Scale Fisheries Sector in South Africa aims to provide recognition and redress to this sector of the fishing industry. It seeks to achieve this objective by adopting a community-based, co-management approach. The Policy accordingly envisages that fishing rights will be allocated to small-scale fishing communities and that these communities will become involved in managing fisheries together with government. This contribution reviews and critically analyses the scope of application of the Small-Scale Policy and the management approach adopted by the Policy, with a view to assessing its potential to achieve the objective of providing redress to the formerly marginalised groups of fishers. This analysis takes place against the backdrop of the significant resource constraints in the fisheries arena and the country’s vision for its future economic development as described in the National Development Plan.
Reflections on Judicial Views of uBuntu
Authors: Himonga Chuma , Taylor Max , Pope Anne
Published: May 2017

Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying  the Bill of Rights.
Reforming the Multilateral Decision-making Mechanism of the WTO: What is the Role of Emerging Economies?
Authors: Saurombe Amos
Published: May 2017

The paper focuses on the future of global economic governance in the light of the current state of multilateral trade negotiations. The aim is to analyse identified key historical issues at the heart of the decision-making system of the World Trade Organization (WTO). The current and ongoing Doha Round of trade negotiations and the multilateral system reflect inequalities that still prevail in the global trade architecture. Is there a need for a paradigm shift? The paper will provide recommendations on how reform of the multilateral decision-making structures should focus on promoting the interests of developing countries that have historically been marginalised. Developing countries, like those making up BRICS, stand ready to contribute to the construction of a new international architecture, to bring the voices of the south together on global issues and to deepen their ties in various areas.
"Originality" and "Reproduction" in Copyright Law with Special Reference to Photographs
Authors: Harms Louis
Published: May 2017

Turning to lessons from foreign jurisdictions, this note explores from a copyright perspective the fact that photographs are produced mechanically and more often than not without any effort or mental input. A minute number are taken for anything but personal use and in the digital age photographs tend to have a high degree of mobility and are also ephemeral and without any commercial value. It is accordingly difficult to justify in general terms copyright protection for photographs. Two of the main legal issues in this context are the criteria for originality and the meaning of the reproduction of a photograph.  These two issues form the central point of discussion in this contribution.
Unpacking the Right to Plain and Understandable Language in the Consumer Protection Act 68 of 2008
Authors: Stoop Philip N , Churr Chrizell
Published: May 2017

The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The purpose of this Act is, among other things, to promote fairness, openness and respectable business practice between the suppliers of goods or services and the consumers of such good and services. In consumer protection legislation fairness is usually approached from two directions, namely substantive and procedural fairness. Measures aimed at procedural fairness address conduct during the bargaining process and generally aim at ensuring transparency. Transparency in relation to the terms of a contract relates to whether the terms of the contract terms accessible, in clear language, well-structured, and cross-referenced, with prominence being given to terms that are detrimental to the consumer or because they grant important rights. One measure in the Act aimed at addressing procedural fairness is the right to plain and understandable language. The consumer’s right to being given information in plain and understandable language, as it is expressed in section 22, is embedded under the umbrella right of information and disclosure in the Act. Section 22 requires that notices, documents or visual representations that are required in terms of the Act or other law are to be provided in plain and understandable language as well as in the prescribed form, where such a prescription exists. In the analysis of the concept “plain and understandable language” the following aspects are considered in this article: the development of plain language measures in Australia and the United Kingdom; the structure and purpose of section 22; the documents that must be in plain language; the definition of plain language; the use of official languages in consumer contracts; and plain language guidelines (based on the law of the states of Pennsylvania and Connecticut in the United States of America).
A Customary Right to Fish when Fish are Sparse: Managing Conflicting Claims between Customary Rights and Environmental Rights
Authors: Feris Loretta
Published: May 2017

This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes present in indigenous claims to marine resource by communities who were subjected to colonisation. In doing so it analyses the South African judgment, S v Gongqose Case No. E382/10 (unreported), which alluded to the existence of a customary right to fishing, a concept that has until now remained unexplored in South African law. This discussion is followed by a brief overview of the rapidly declining state of marine resources, worldwide and in South Africa. The note then considers the relationship between customary law and marine resources and some of the challenges in meeting rights-based customary claims to marine resources against the need to conserve a dwindling resource. It concludes by offering possibilities for reconciliation.
Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the Right to be Racist in Boe Trust Limited
Authors: Modiri Joel M
Published: May 2017

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.
Editorial
Authors: Rautenbach Christa
Published: May 2017

The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
Against the New Constitutionalism
Authors: Venter Francois
Published: May 2017

This contribution reviews the book entitled Against the New Constitutionalism authored by Tamas Gyorfi. He challenges the pivotal role given to judges in constitutional adjudication.
Prosecuting the Offence of Misappropriation of Public Funds: An Insight into Cameroon's Special Criminal Court
Authors: Agbor Avitus
Published: May 2017

The fight against the misappropriation of public funds for private gain perpetrated by individuals, especially public servants, enjoys different degrees of commitment by different countries. The enactment of laws and establishment of institutional mechanisms towards this end are partly a reflection of the attainment of such mission and can also be the measure by which such a commitment can be assessed. Rated as one of the most corrupt countries in Africa by the global anti-corruption watchdog, Transparency International, the Republic of Cameroon recently enacted a law that created a Special Criminal Court. This comes as one of the most robust and significant legislative developments in the fight against misappropriation of public funds as its mandate is to bring to justice persons who cause loss of at least 50.000.000 CFA Francs [equivalent to about USD 100.000] relating to misappropriation of public funds and other related offences provided for in the Cameroon Penal Code and International Conventions ratified by Cameroon.’ This paper examines the offence of misappropriation of public funds, and looks at aspects of the Special Criminal Court as provided by the Law that established it as well as supplementary legislation enacted to address specific issues related to the Special Criminal Court as well as the offence for which individuals are prosecuted. As a bold step in fighting and defeating the ‘invisible enemy amongst us’ (that is, corruption), this paper argues that with such an institutional mechanism that has docked numerous top-notch politicians and former cabinet members for trial, it becomes an example to emulate and confirms that corruption can be fought if, and only when, the political will to do so is present.
New Research on East Germany: An Introduction
Authors: Silberman Marc
Published: May 2017

Over a quarter century has elapsed since the end of the Cold War and the unification of Germany, enough time for writers, artists, scholars, and the general public to have both remembered their pre-1990 experience and witnessed a series of controversies in the retelling or rewriting of that past. Now we are in the process of a generational shift, not only in the sense of a young adult generation with few of their own memories of divided Germany but also of a younger generation of scholars whose knowledge about the two Germanys has been mediated by their older mentors. I am one of those older mentors and suspect that the next-generation scholars are developing new approaches, sources, and methodologies for research on the German past and present. I have repeatedly considered and reconsidered my own scholarly trajectory vis-à-vis East Germany both before and after unification. But I am convinced that our younger colleagues, who­—for reasons of their own—are drawn to the German Democratic Republic (GDR) and what since unification is known as eastern Germany as an object of interest and even fascination, have important things to communicate.
Negotiating Memories of Everyday Life during the Wende
Authors: Hetzer Maria
Published: May 2017

Abstract | The visual essay is based on research carried out between 2010 and 2015 under the title “Bodies of Crisis—Remembering the German Wende.” The project mainly consisted of oral-history research and a series of performance events presented in the UK and Germany. In 27 interviews, women from East Germany recollected their embodied quotidian experience amidst the political transition from a socialist to a capitalist state in 1989 and thereafter. Live performance opened up access points for a transcultural translation of this experience involving practitioners from diverse cultural and creative backgrounds. The performance work extended the culturally specific experience beyond the East German case by pointing toward global struggles for existence, acceptance, and emancipation. Résumé | Cet essai visuel est le résultat du projet d’études «Bodies of Crisis – Remembering the German Wende» (Corps de la crise – Souvenir de la chute du Mur), réalisé à l’Université de Warwick de 2010 à 2015. Au moyen de 27 interviews, des femmes de l’Allemagne de l’Est se sont remémoré les expériences corporelles de leur vie quotidienne pendant l’époque troublée de 1989 et 1990. Ces interviews ont jeté la base d’un spectacle vivant impliquant des artistes variés, ouvrant un espace d’expression transculturel et artistique de ces expériences de temps de crise. La performance a montré l’universalité des expériences spécifiques de l’Allemagne de l’Est au regard des enjeux mondiaux que sont la survie, la reconnaissance et l’émancipation.
Beyond Domination: Socialism, Everyday Life in East German Housing Settlements, and New Directions in GDR Historiography
Authors: Rubin Eli
Published: May 2017

Abstract | Communist societies in Eastern Europe have left behind massive prefabricated housing settlements within and outside cities as perhaps their most visible legacy, often assumed to be a negative legacy. Yet this assumption is a superficial judgment, one indicative of a larger trend in the history of Eastern Europe, especially that of East Germany, which only operates within a framework of power and state versus society. What happens when we examine everyday life in socialism without taking as our starting point a search for state power as the goal of the research?  Removing this solipsistic framework, we see a different, more balanced picture, not one that necessarily whitewashes or ignores the presence of the state, but one that clearly tells the story  of a kind of socialism that was experienced by ordinary people as a tight-knit community rather than a form of top-down control.   Such an analysis points the way forward to a reassessment of Eastern European communist society. Résumé | Beaucoup des grandes ensembles préfabriqués survivent dans les villes des sociétés communistes. Ils sont l’héritage le plus visible de communisme, lieux de mémoire d’un monde profané. Mais ce jugement est superficiel, et c’est partie d’une tendence plus grande dans l’histoire de l’Europe de l’Est, notamment de l’histoire de RDA. Cette tendence perçoit seulement le système de pouvoir. Je vois l’histoire quotidienne dans les ensembles. Cette perspective révèle une société qui a bon fontionné et commence une révaluation de la socio-histoire des pays communists dans l’Europe de l’Est.
Adventures in Communism: Counterculture and Camp in East Berlin
Authors: Smith Jake P.
Published: May 2017

Abstract | This essay examines the encounter between Western countercultural groups and the urban landscape of East Berlin in the years immediately following the fall of the Berlin Wall in 1989. Focusing on squatted houses, the underground techno scene, and experimental art projects, the essay argues that countercultural groups who were active in East Berlin in the early 1990s developed a peculiar set of practices that were characterized both by their campy aesthetics and by their temporal indeterminacy. The essay posits that these experimental temporal practices were only possible due to the layered historicity of urban space in the dilapidated, inner-city neighbourhoods of East Berlin. Résumé | Cet essai étudie la rencontre entre les groupes contre-culturels Occidentaux et le paysage urbain de Berlin-Est suite à la chute du Mur de Berlin en 1989. A travers une analyse des squats, de la scène techno « underground » et des projets d’art expérimental, l’essai soutient que les groupes contre-culturels actifs dans le Berlin-Est du début des années 1990 ont développé un ensemble de pratiques caractérisé à la fois par leur esthétique maniérée et leur indétermination temporelle. L’essai avance que seule l’historicité imbriquée de l’espace urbain dans les quartiers pauvres et dilapidés du Berlin-Est a rendu possible ces pratiques temporelles expérimentales.
Archives for the Future
Authors: Ebbrecht-Hartmann Tobias
Published: May 2017

Abstract | Visual media played a crucial role on nearly all levels of everyday private and public life in the GDR. This essay intends to readjust the focus on GDR visual history by investigating its margins, including ephemeral and semi-official film archives beyond the “official” state-controlled production of images. It does not reexamine such ephemeral cinematic remnants as historical sources but rather as traces that have to be understood in context and appropriated, arranged, and re-read, assembling them as fragments of the past. The specific focus here is on the works of Thomas Heise, a filmmaker who—although prohibited from producing and publicly releasing films during the existence of the GDR—managed to create during that time various audio and visual artifacts as contributions to archives for the future. Résumé | En la RDA les médias visuels ont joué un rôle crucial dans presque tous les domaines de la vie quotidienne, qu’elle soit privée ou publique. Cet essai a pour but de réajuster le focus sur l’histoire visuelle de la RDA en examinant ses marges, en incluant les archives éphémères et semi-officielles au-delà de la production “officielle” d’images. Cet essai ne réexamine pas ces vestiges cinématographiques éphémères en tant que sources historiques, mais comme des traces devant être comprises dans un certain contexte, approprié, arrangé et re-lu. Cette discussion sur les traces cinématographiques éphémères ainsi que les techniques d’assemblage de fragments du passé explore l’oeuvre de Thomas Heise, un réalisateur unique dans son genre qui – bien qu’il soit interdit de produire et de mettre en circulation publiquement des films sous le régime de la RDA – a créé pendant ce temps des artefacts audios et visuels comme contributions aux archives pour l’avenir.
Whose East German Art is This? The Politics of Reception after 1989
Authors: Eisman April A.
Published: May 2017

Abstract | Beginning with an overview of painting in East Germany, this article examines the German-German Bilderstreit (image battle) of the long 1990s and two major art exhibitions in the new millenium, Kunst in der DDR (Art in the GDR, 2003) and Abschied von Ikarus(Farewell to Icarus, 2012-13). It ultimately argues that the history of East German art has been rewritten since unification in ways that reflect Western expectations and desires more than socialist realities, and shows how art historians, scholars of the German Democratic Republic (GDR, or East Germany), and those seeking alternatives to the neoliberal present can benefit from a less biased view. Résumé | Commençant par un résumé de la peinture en Allemagne de l’Est, cet essai examine la bataille de l’image allemande-allemande dans des longues années 1990 et deux grandes expositions d’art dans le nouveau millénaire, Kunst in der DDR (L’Art en la RDA, 2003) et Abschied von Ikarus (Adieu à Icarus. 2012-13). Il fait valoir en fin de compte que l’histoire de l’art est-allemand a été réécrit depuis l’unification d’une manière qui reflète les attentes et désirs occidentales plus des réalités socialistes, et montre comment les historiens de l’art, les chercheurs de la RDA, et ceux qui cherchent des alternatives au présent néolibéraux peuvent bénéficier d’une perspective moins préjugé.