Mining in Nature Reserves – Providing Partial Legal Certainty where Ambiguity Prevailed

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

Mining in Nature Reserves – Providing Partial Legal Certainty where Ambiguity Prevailed

Authors Alexander Paterson

ISSN: 1996-2193
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 199 – 219

Abstract

Protected areas form a central element of South Africa’s conservation strategy. Certain activities hold great potential to undermine the conservation objectives underlying protected areas, and the Government has accordingly imposed prohibitions on these activities taking place within certain categories of protected areas. One such prohibition imposed by both the National Environmental Management: Protected Areas Act 57 of 2003 and the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRD") relates to prospecting and mining activities within nature reserves. Notwithstanding the apparent simplicity of its design, the implementation of this legal mechanism has proven problematic in practice and triggered several recent court battles. One of the most prominent of these related to an attempt by Barberton Mines (Pty) Ltd to undertake prospecting activities in the Barberton Nature Reserve situated in Mpumalanga. The dispute traversed through the North Gauteng High Court and the Supreme Court of Appeal ("SCA"), with the Constitutional Court ultimately declining leave to appeal in July 2017. One would anticipate that determining the existence and legal boundaries of a nature reserve to be a relatively simple task, but what this series of judgments clearly illustrates is that this is not the case. They provide evidence of the potential confusion caused by both legislative drafting anomalies and the manner in which some authorities exercise their executive powers in terms of the applicable legislative framework. Cumulatively, the judgments held potential to resolve this confusion, but as this note seeks to highlight, perhaps they only partially did so, a concerning reality given the prevalence of many yet to be exercised prospecting and mining rights having been granted within the boundaries of the country’s nature reserves.

Subconscious Advocacy – Part 2: Verbal Communication in the Courtroom and Ethical Considerations

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

Subconscious Advocacy – Part 2: Verbal Communication in the Courtroom and Ethical Considerations

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 175 – 198

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.

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.