A critical appraisal of the parole system and its compliance with section 165 of the Constitution

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

A critical appraisal of the parole system and its compliance with section 165 of the Constitution

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 141 Issue 3, p. 554-588
https://doi.org/10.47348/SALJ/v141/i3a7

Abstract

In terms of state organisation under the Constitution of the Republic of South Africa, 1996, the administration of justice, which encompasses the powers of the judiciary and the prosecuting authority, is clearly demarcated from the executive. Section 165(5) of the Constitution explicitly states that an order or decision of a court ‘binds all persons to whom and organs of state to which it applies’. Sentencing is a judicial power, and the discretion to grant parole is also a judicial power. The legislature attempted to reform the 1959 parole system, which conferred parole powers upon executive state organs, with the Correctional Services Act 111 of 1998 but failed to align the granting of parole with the constitutional norms of ss 165 and 35(2) of the Constitution. Instead, the legislature conferred these powers upon executive state organs in contravention of s 165(4). In practice, the executive is therefore usurping judicial power, although s 165(3) proscribes any organ of state from interfering with the functioning of the courts. The granting of parole cannot be transformed into some kind of ‘administrative action’ of the executive taken under s 85(2) of the Constitution. The rights of detained sentenced offenders are protected by s 35(2) of the Constitution, which offers relief for unlawful detention. Section 33 upholds just administrative action and does not apply to criminal justice.

Propping up the crumbling city: Sectional title law, residential building governance and local government

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

ARTICLE

Propping up the crumbling city: Sectional title law, residential building governance and local government

Author: Marius Pieterse

ISSN: 1996-2177
Affiliations: Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 141 Issue 3, p. 589-621
https://doi.org/10.47348/SALJ/v141/i3a8

Abstract

This article considers the interface between urban local government and sectional title, focusing specifically on the governance of residential apartment blocks in urban areas. It argues that the governance of sectional title schemes is currently wrongly depicted in South African law as being predominantly ‘private’ and contractual in nature. Based on a historical overview and qualitative case study of apartment building governance in centrally located suburbs in the city of Johannesburg, the article argues that building governance ought to be reconceptualised as being located primarily within a public-law paradigm, more specifically as forming part of the ‘special cluster of relationships’ that govern service delivery in South African cities and that give rise to public-law rights and responsibilities, ultimately sourced in the Constitution, for all the relevant parties. This would imply that the relationship between cities and sectional title schemes ought to be viewed as one between local government and rights-bearing stakeholders (rather than customers or residential subjects). Moreover, it would require that sectional title schemes’ governing agents be both adequately empowered and adequately held accountable, under administrative and constitutional law, for exercising their governance functions.

J Smit, E O Alemika, C Botha, G Ngantweni & G van Mollendorf (eds) Policing in Africa — Towards an African Epistemology (2022)

by | Aug 17, 2024 | SALJ, SALJ V141 I3 2024

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J Smit, E O Alemika, C Botha, G Ngantweni & G van Mollendorf (eds) Policing in Africa — Towards an African Epistemology (2022)

Author: Elrena van der Spuy

ISSN: 1996-2177
Affiliations: Centre of Criminology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 3, p. 630-633
https://doi.org/10.47348/SALJ/v141/i3a10

Abstract

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Common-law avoidance

Common-law avoidance

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

Common-law avoidance

Author: Leo Boonzaier

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 2, p. 213-256
https://doi.org/10.47348/SALJ/v141/i2a1

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Boonzaier, L
Common-law avoidance
South African Law Journal, Volume 141 Issue 2, p. 213-256 https://doi.org/10.47348/SALJ/v141/i2a1

Abstract

This article discusses an important trend in recent judgments of our appellate courts, which I call ‘common-law avoidance’. Rather than applying established sets of common-law principles, the courts have chosen to substitute them with other sets of norms of their own invention, usually sourced in the Constitution. This marks a departure from the status quo ante, in which it was accepted that the impact of the Constitution on private-law disputes was to be felt through the common law, rather than by displacing it. I discuss three cases that evidence this new pattern, spanning the three branches of the law of obligations: AB v Pridwin Preparatory School, which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality, involving delict; and Greater Tzaneen Municipality v Bravospan 252 CC, which raised an issue in the law of unjustified enrichment. I critically assess the trend exhibited in these cases, arguing that it is the result of (among other factors) the courts’ preference for the Constitution’s more familiar and discretionary standards, and of their increasing difficulties in meeting the demands of the common-law method.

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

by | Apr 7, 2024 | SALJ, SALJ V141 I2 2024

When is discrimination unfair? A relational reconstruction of the Constitutional Court’s dignity-based approach

Author: Denise Meyerson

ISSN: 1996-2177
Affiliations: Emeritus Professor of Law, Macquarie University
Source: South African Law Journal, Volume 141 Issue 2, p. 257-292
https://doi.org/10.47348/SALJ/v141/i2a2

Abstract

In this article, I examine the dignity-based test for unfair discrimination developed by the Constitutional Court of South Africa. First, I argue that the point of antidiscrimination rights is to protect equality. They seek to prevent a comparative wrong — wrongful disparities in treatment. Violating dignity appears, however, to be a non-comparative wrong — one that is independent of the treatment extended to others. Tying unfair discrimination to dignity violations therefore seems to miss the comparative concerns that underlie anti-discrimination rights. Adding that everyone is ‘equally’ entitled to be treated with dignity does not solve the problem. I respond to this apparent difficulty with the court’s approach by suggesting that the court is best understood as concerned with a distinctive kind of dignity — status dignity. I also argue that there is an attractive conception of equality — relational equality — that explains why violations of status dignity are violations of equality. This interpretation provides the requisite egalitarian foundation for the court’s approach. Secondly, I address the criticism that a dignity-based understanding of substantive equality is too limited to address systemic inequalities. I suggest that an understanding based in status dignity is suitably robust and requires far-reaching reforms and restructuring of social practices.