An Analysis of United Nations Charter Obligations and Security Council Chapter VII Referrals to the International Criminal Court against the Backdrop of Al-Bashir

by | Oct 28, 2019 | SLR, SLR V29 I2

An Analysis of United Nations Charter Obligations and Security Council Chapter VII Referrals to the International Criminal Court against the Backdrop of Al-Bashir

Authors CF Swanepoel

ISSN: 1996-2193
Affiliations: Department of Public Law, Faculty of Law, University of the Free State
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 161 – 173

Abstract

Against the backdrop of the International Criminal Court’s ("ICC") July 2017 judgment in the matter concerning South Africa’s now infamous failure to cooperate with the court and arrest Sudanese head of state Omar Al-Bashir when he visited the country in 2015, this contribution analyses United Nations ("UN") member states’ obligations in the event of a United Nations Security Council ("UNSC") chapter VII referral to the ICC. This occurs by way of a parallel study of case law and literature. The research shares observations on the relationship between the UNSC and the ICC, the UN’s institutional mandate with reference to the ICC, as well as article 98 of the Rome Statute. It is then concluded that UNSC Resolution 1593 — which referred the Sudanese situation to the ICC, and was the first referral of its kind — and the subsequent judgment, mark a significant step forward in terms of clarifying the legal status of chapter VII referrals to the ICC, defining member states’ obligations and generally advancing a credible international justice system. The judgment has also brought much-needed clarity about the perceived tension between articles 27 and 98 of the Rome Statute, as alluded to by the South African Supreme Court of Appeal in its 2016 judgment on the same matter.

Does the Application of the Blom Rules Entitle Oscar Pistorius to an Acquittal?

by | Oct 28, 2019 | SLR, SLR V29 I1

Does the Application of the Blom Rules Entitle Oscar Pistorius to an Acquittal?

Authors Tshepo Bogosi Mosaka

ISSN: 1996-2193
Affiliations: PhD Candidate (Nottingham)
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 146 – 158

Abstract

Oscar Pistorius shot and killed his girlfriend on a warm Valentine ‘s Day morning in 2013 and was charged with murder. After having been acquitted on that charge (and convicted on the competent verdict of culpable homicide) by the High Court, the Supreme Court of Appeal ("SCA") overturned this finding and convicted him of murder. The main fact in issue was the intent of the accused and the state’s evidence in this regard was "purely circumstantial". In defence of this fact in issue, the accused alleged that he had acted in putative private defence. As such, this note explores four important points. Firstly, that although not even properly referred to by the High Court, nor the SCA, the Blom rules had to be applied in the assessment of the weight of circumstantial evidence adduced. Secondly, that the SCA incorrectly rejected the "intruder inference" raised by the accused’s evidence without any application of the Blom rules whatsoever. Thirdly, this note establishes the reasonableness of the "intruder inference", without taking anything away from the cogency of the "intention inference" drawn by the SCA. Finally, it is argued that the reasonableness of the intruder inference and a correct application of the Blom rules at the very least raises the question whether the SCA was correct in convicting the accused of murder. Although a direct answer is not provided to this question, this note merely stresses the importance of this question and the possibility that the SCA’s decision may well be an appealable misdirection.

Pursuing the Crafting of a Legislative Ban on Corporal Punishment in the Home

by | Oct 28, 2019 | SLR, SLR V29 I1

Pursuing the Crafting of a Legislative Ban on Corporal Punishment in the Home

Authors Prinslean Mahery

ISSN: 1996-2193
Affiliations: Lecturer at the University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 124 – 145

Abstract

There has been a persistent call to ban corporal punishment in the home both nationally [fn106] and internationally. This article explores various factors relevant to drafting such a ban and further examines national and foreign law provisions, which could assist the South African legislature in framing a prohibition on corporal punishment in the family setting. footnote 106: General Comment 8 para 5.

While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]

by | Oct 28, 2019 | SLR, SLR V29 I1

While we Were Sleeping – The Choice on Termination of Pregnancy Amendment Draft Bill as an Act of Indirect Discrimination? Discussion of the Choice on Termination of Pregnancy Amendment Draft Bill [PMB-2017]

Authors Sheena Swemmer

ISSN: 1996-2193
Affiliations: Attorney and Gender Researcher: Centre for Applied Legal Studies, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 107 – 123

Abstract

This note focuses on certain proposed amendments to the Choice on Termination of Pregnancy Act 92 of 1996 ("the Act") as proposed by MP Dudley in a private member’s bill, the Choice on Termination of Pregnancy Amendment Draft Bill ("the draft Bill"), and argues that these proposed amendments constitute a case of indirect discrimination as set out in section 9(3) of the Constitution and applied in the case of City Council of Pretoria v Walker. In order to support the argument that the proposed amendments are a case of indirect discrimination the importance of the Act is discussed with references to the history of the Act and the rights in the Bill of Rights, which the Act aims to realise. Following this, a brief history of the draft Bill is presented with reference to a similar draft bill being proposed by MP Dudley in 2010. The case of Walker and Harksen v Lane NO and Others is relied upon in order to sketch an appropriate approach to determining whether conduct should be considered as constituting indirect discrimination and three proposed amendments are analysed to determine whether they are instances of indirect discrimination. The three proposed amendments are: the change to the definition of "gestation period", the provision of mandatory counselling, and the provision of ultrasound photographs to be used in order for there to be "informed choice". In finding that the proposed amendments constitute acts of indirect discrimination in terms of the test set out in Harksen, I propose that the remedy for this discriminatory conduct should be the failure of the draft Bill to amend any part of the Act whatsoever. I also conclude by suggesting that a novel approach be taken to discipline political parties and members of parliament who have shown to continuously act in ways that directly or indirectly discriminate against a certain group, such as in this instance the MP Dudley’s continued focus on attempting to limit the reproductive rights of woman.

Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

by | Oct 28, 2019 | SLR, SLR V29 I1

Teaching Sexual Offences Sensitively: Not a Capitulation but Good Pedagogy

Authors Jameelah Omar

ISSN: 1996-2193
Affiliations: Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 90 – 106

Abstract

Sexual offences form a part of the criminal law syllabus during the LLB programme at most South African law schools. All law graduates in South Africa should have the knowledge and skills to understand the nuances and sensitivities related to sexual offences. The option of avoiding the subject matter entirely is not viable given the prevalence of sexual offences in South Africa. Sexual offences are inherently uncomfortable to talk about. For some students, the discomfort of talking about sexual offences is actually secondary trauma as a result of their own past experiences or those of close family members or friends. This must be factored into how the law in this area is taught. The need to balance the social context with legal content is an ongoing debate in law schools, particularly considering the demand for decolonised syllabi. Lecturers of sexual offences must strive to do both: teach the technical law and introduce students to the intersectional issues of gender and power that is closely connected to the law on sexual offences. This article considers the importance of teaching sexual offences and affirms the need for reflection by lecturers on how sensitive topics have been taught historically. The article establishes several classroom practices that can mitigate secondary trauma, including how sexual offences should be assessed constructively. The legal profession is an important role player in the criminal justice system and includes defence lawyers, prosecutors, judicial officers and activists. The importance of the topic and how it is taught should form part of the training law students receive that prepares them to challenge rape culture in the practice of the law when they encounter it in their legal careers.

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

by | Oct 28, 2019 | SLR, SLR V29 I1

Property Rights and their Continued Open-Endedness – A Critical Discussion of Shoprite and the Constitutional Court’s Property Clause Jurisprudence

Authors Max du Plessis, Toni Palmer

ISSN: 1996-2193
Affiliations: Member of the Durban Bar Research Associate, University of KwaZulu-Natal; Member of the Durban Bar
Source: Stellenbosch Law Review, Volume 29 Issue 1, 2018, p. 73 – 89

Abstract

The article considers the 2015 Constitutional Court decision of Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape ("Shoprite"). While formally the case concerns a liquor licence, the authors contend that what is really of concern (and what is on display in the judgment) is an approach to section 25(1) of the Constitution that gives very little in the way of guidance, principles, or rules for the determination of property disputes. This context-sensitive review standard, which does not provide much in the way of principles delineating how competing values are to be reconciled, but rather doing so — and reaching outcomes — on an ad hoc basis began with First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance and has continued since. The authors propose that this may have been a deliberate move by the Constitutional Court to carve out an almost unfettered discretion to decide property cases as it deems fit. This allows the Constitutional Court to reach outcomes in politically awkward cases which actively avoid confrontation with the political branches, whilst still adhering to legal principles and enforcing the Constitution, to the extent possible. Shoprite brings into sharp focus why such an approach is less than satisfying — not least of all since it results in three judges of the Constitutional Court, all applying what is ostensibly the same legal standard (section 25, and FNB), while being unable to agree on a single aspect of the section 25(1) analysis. The authors contend that an approach to constitutional adjudication that makes it difficult for lower court judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied, and to know, with some degree of certainty, that the basic law is going to be applied equally, constitutes a paradigmatic violation of the rule of law.