The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

by | Aug 20, 2023 | FUND, FUND V29I1

The Right Against Double Jeopardy (Non Bis in Idem) and the Drafting History of Article 14(7) of the International Covenant on Civil and Political Rights, 1966

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 29 Issue 1, p. 1-28
https://doi.org/10.47348/FUND/v29/i1a1

Abstract

Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. The drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a “final” judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a “final judgment” within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word “finally” in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states. It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

by | Aug 20, 2023 | FUND, FUND V29I1

A Courtroom Misdiagnosis: A Historical Overview of the South African Approach to Evidence of Persons with Communication Disabilities Before 1996

Author Mahlubandile Ntontela

ISSN: 2411-7870
Affiliations: LLB LLM PGDip in Labour Law Practice PGDip in Drafting and Interpretation of Contracts. Lecturer, Department of Criminal Law and Procedure, Nelson Mandela University
Source: Fundamina, Volume 29 Issue 1, p. 29-52
https://doi.org/10.47348/FUND/v29/i1a2

Abstract

Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts’ challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities. Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century — Part Two

by | Aug 20, 2023 | FUND, FUND V29I1

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century — Part Two

Authors Stephen Allister Peté and Paul Swanepoel

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) MPhil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal; MA (Hons) (University of St Andrews) LLB (University of Natal) MSc PhD (University of Edinburgh). Senior lecturer, School of Law, University of KwaZulu-Natal
Source: Fundamina, Volume 29 Issue 1, p. 53-79
https://doi.org/10.47348/FUND/v29/i1a3

Abstract

Mahmood Mamdani has argued that a system of “define and rule” lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of “race” dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani’s general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to “race” and “tribe”. It is the contention of this contribution that Mamdani is correct in his assessment that “define and rule” lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved on the ground. Certain individuals and groups tended to fall between broad definitions of “race” and “tribe”, both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony’s newspapers around that time. Even though there may have been relatively few individuals who fell “in-between” the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

by | Aug 20, 2023 | FUND, FUND V29I1

The Nationalisation of the South African Reserve Bank: a Legal-Historical Perspective of Three Central Banks

Author Gerda van Niekerk

ISSN: 2411-7870
Affiliations: BComm LLB LLD (UP). Senior lecturer, Department of Mercantile Law, University of Limpopo
Source: Fundamina, Volume 29 Issue 1, p. 80-109
https://doi.org/10.47348/FUND/v29/i1a4

Abstract

The debate continues about whether the South African Reserve Bank should be nationalised or not. This contribution looks at the evolution of central banks, as well as at the origin and historical background of the central banks in three countries, namely the South African Reserve Bank, the Reserve Bank of Australia and De Nederlandsche Bank. The shares in the South African Reserve Bank belong to private shareholders; the Reserve Bank of Australia has been the property of the government of Australia since its inception; and De Nederlandsche Bank was nationalised in 1948. The potential nationalisation of the South African Reserve Bank will come with a hefty price tag, as the shareholders will have to be compensated for the value of their shares. Section 224 of the Constitution of the Republic of South Africa, 1996 determines that the South African Reserve Bank should “protect the value of the currency in the interest of balanced and sustainable economic growth”. The constitutional power of the Bank to be responsible for monetary policy will not change if it is nationalised. This contribution recommends that the South African Reserve Bank not be nationalised due to the big cost thereof to South Africa and because not much will be achieved by such a step.