Clarifying the constitutional status of the National Prosecuting Authority

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Clarifying the constitutional status of the National Prosecuting Authority

Author: Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, UFS Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 140 Issue 2, p. 413-452
https://doi.org/10.47348/SALJ/v140/i2a7

Abstract

Chapter 8 of the Constitution aligns the status of the National Prosecuting Authority (‘NPA’) to the separation of powers typical for constitutional states where two principal organs developed in the third branch of state power during the midnineteenth century to refine Montesquieu’s model of separation of powers. The organs for the ‘administration of justice’ consist of the judiciary (adjudication) and prosecutors (prosecuting crime). Therefore, the status of the NPA entails both structural and functional independence from the executive. The reasons for the NPA’s failures are manifold and complex. The main reason is that the political elite continued to treat the NPA as a part of the executive branch, partly perpetuating the practice under the former Westminster constitutions and partly due to the ANC’s policy of ‘democratic centralism’. This has resulted in a chaotic state organisation of criminal justice where the powers allocated to prosecutors by s 179(2) are not clearly demarcated from policing powers under s 205(3) of the Constitution. For the proper functioning of the NPA to uphold the rule of law, it is important to delineate clearly the powers of the NPA from those of the judiciary, the executive — especially the Minister of Justice — the President, the police, and the watchdog functions of Chapter 9 institutions.

Book Review: David Cluxton Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions (2022)

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Book Review: David Cluxton Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions (2022)

Authors: William Kiema & Philippe-Joseph Salazar

ISSN: 1996-2177
Affiliations: University of Cape Town; University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 458-464
https://doi.org/10.47348/SALJ/v140/i2a9

Abstract

None

Notes: The Krugersdorp gang rapes — Another Tshabalala v S; Ntuli v S?

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Notes: The Krugersdorp gang rapes — Another Tshabalala v S; Ntuli v S?

Author: Jolandi le Roux-Bouwer

ISSN: 1996-2177
Affiliations: Professor of Law, University of South Africa
Source: South African Law Journal, Volume 140 Issue 1, p. 1-16
https://doi.org/10.47348/SALJ/v140/i1a1

Abstract

This note assesses the application of the common purpose doctrine to the crime of gang rape. The recent gang rape of eight women in West Village, Krugersdorp on 28 July 2022 received wide media coverage. If and when there is a prosecution, the courts will have to adjudicate on the application of the common purpose doctrine to the newly defined statutory crime of rape. The Criminal Law (Sexual Offences and Related Matters Amendment) Act 32 of 2007 (‘SORMA’) came into effect on 16 December 2007. The Constitutional Court, in Tshabalala v S; Ntuli v S 2020 (2) SACR 38 (CC), held that the common purpose doctrine was applicable to the autographic crime of common-law rape. Since the alleged crimes had occurred in 1998, SORMA was not applicable in this case. If the Krugersdorp gang rape incident reaches the Constitutional Court the case may provide the court with the opportunity to elucidate on the practical impact of its decision in Tshabalala v S; Ntuli v S.

Notes: Do retirement funds have a right to transfer accrued retirement benefits without non-member spouses’ consent? An analysis of the Collatz matter

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Notes: Do retirement funds have a right to transfer accrued retirement benefits without non-member spouses’ consent? An analysis of the Collatz matter

Author: Motseotsile Clement Marumoagae

ISSN: 1996-2177
Affiliations: Associate Professor, University of the Witwatersrand; Visiting Associate Professor, National University of Lesotho
Source: South African Law Journal, Volume 140 Issue 1, p. 17-37
https://doi.org/10.47348/SALJ/v140/i1a2

Abstract

Neither the legislature nor the courts have adequately determined how to regulate benefits that retirement fund members married in community of property derive a right to claim before their death. It illustrates the failure of the courts to assess the intersection between matrimonial principles and pension rules when faced with nonmember spouses who argue that their deceased member spouses’ retirement benefits accrued to their joint estates. The courts need to consider seriously the applicability of matrimonial principles before retirement benefits can be treated as death benefits. Further, the note demonstrates that the courts over-emphasise the role of pension rules and totally disregard matrimonial principles, thereby depriving surviving non-member spouses of their share of the accrued retirement benefits. This note further argues that the legislature should urgently intervene.

Notes: Municipal crisis: A justifiable limitation of political rights

by | Feb 19, 2023 | SALJ, SALJ V140 I1 2023

Notes: Municipal crisis: A justifiable limitation of political rights

Author: Matt Williams

ISSN: 1996-2177
Affiliations: Candidate Attorney, Webber Wentzel
Source: South African Law Journal, Volume 140 Issue 1, p. 38-52
https://doi.org/10.47348/SALJ/v140/i1a3

Abstract

Section 56A of the Local Government: Municipal Systems Act 32 of 2000 provided for the limitation of the political rights of municipal managers and managers directly accountable to municipal managers. The South African Municipal Workers Union (SAMWU) challenged the constitutionality of s 56A on both procedural and substantive grounds in the High Court. The substantive ground related to whether s 56A was a justifiable limitation of the s 19(1) right to make free political choices. Having found for SAMWU on procedural grounds the High Court did not decide the substantive ground. The Constitutional Court confirmed the High Court’s order. The nett result is that there has not been a judicial pronouncement on whether s 56A is a justifiable limitation of political rights. The successor provision to s 56A is s 71B, which was inserted into the Act by s 9 of the Local Government: Municipal Systems Amendment Act 3 of 2022. This provision provides for the limitation of the political rights of municipal staff members. In the absence of a judicial pronouncement on this issue, this note applies a justification analysis in terms of s 36 of the Constitution and finds that s 71B is a justifiable limitation of the right to make free political choices.