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Comparative Evaluation of the Challenges of African Regional Human Rights Courts  [cached]
Timothy Fwa Yerima
Journal of Politics and Law , 2011, DOI: 10.5539/jpl.v4n2p120
Abstract: Recent developments in Africa have witnessed the establishment of African Court of Human Rights and African Court of Justice; and the eventual merger of the two Courts as the African Court of Justice and Human Rights. The Courts were established to compliment the protective mandate of African Commission on Human Rights. The establishment of African Human Rights Courts has catapulted scholars into considering whether the option is better for African human rights system or whether it was taken impetuously. The question is imperative in view of the problems that besiege the African Commission. This article considers the foreseeable hurdles that the African Court of Human Rights and the merged Court are likely to face. It points out that the African human rights system was built on a shaky foundation and suggests ways for revamping the system.
THE SOUTH AFRICAN MILITARY COURT SYSTEM – INDEPENDENT, IMPARTIAL AND CONSTITUTIONAL?  [cached]
Marita Carnelley
Scientia Militaria : South African Journal of Military Studies , 2011, DOI: 10.5787/33-2-10
Abstract: The Constitution of the Republic of South Africa makes provision for a defence force that is structured and managed as a disciplined military force. Even prior to the Constitution, to ensure discipline in the military, the South African Military Law had been developed and the military court system has been recognised by the Constitutional Court. This military criminal justice system has been created with a separate system of courts hearing matters pertaining to the usual, as well as other special statutory offences; and with a similar, but separate, investigative procedure, prosecuting authority, and court procedure.
E-mail Communication for Provisional Sentence Summons
Roy Samuel Lekala
Journal of International Commercial Law and Technology , 2011,
Abstract: Traditional rules of evidence deny the admissibility of data messages on the mere ground that it is digitised. The South African Electronic Communication and Transaction Act (ECT) was enacted to enable the courts to admit data messages. South African legislation in this regard has followed a similar approach taken by the United Kingdom, the United States, Canada and the Model law. The use of electronic documents as evidence in court initially posed a number of conceptual challenges to the traditional statutory and common law in South Africa. On a close reference to provisional sentence summons in civil courts, South Africa has not yet amended the rules of civil practice to accommodate modern technology, for example, electronic discovery. The success of provisional sentence summons as one of the civil procedures to recover a debt is highly dependent on the liquidity of a document. Clearly, the authors of the definition of a liquid document may not have anticipated the development of technology to the extent that the traditional paper can be replaced completely by the electronic document. This paper seeks to discuss the challenges that may be faced by the courts when determining the admissibility of e-mail communication for the purpose of granting provisional sentence in South African civil courts. The ECT Act excludes liquid documents such as cheques and promissory notes. Therefore the focus of the paper is to discuss whether the requirements of a liquid document for purpose of provisional sentence summons can be met through the use of an e-mail evidence and the challenging aspects in that regard.
Legal argumentation based on foreign law An example from case law of the South African Constitutional Court  [cached]
Andrea Lollini
Utrecht Law Review , 2007,
Abstract: This article aims to make some introductory remarks concerning the phenomenon of the circulation of ‘foreign law’ between constitutional courts. A convenient setting for some considerations regarding this legal phenomenon is the South African constitutional jurisprudence, since Section 39 of the 1996 Constitution enables the Constitutional Court to ‘consider foreign law’ when interpreting the Bill of Rights. This provision has led to the wide use of foreign jurisprudence and legislation, as well as extra-systemic parameters, that have formed the basis for models of legal argumentation. The article explores what appears to be a recurring ‘patterns’ of legal argumentation based on foreign law used by the Court which has been defined ‘probative importation’.
Art, Actually! The Courts and the Imposition of Taste  [cached]
Marett Leiboff
Public Space : the Journal of Law and Social Justice , 2009,
Abstract: Despite their attempt to avoid questions of taste, this article argues that the courts actively engage in a form of connoissuership. For the most part, this involves the courts rendering images into component elements which alters the image or object, in order to acheive a particular legal outcome. By drawing on the history of the 18th century connoisseur, the article suggests that the courts display many of the features of the connoissuer, even when they disavow any involvement in issues of quality. But sometimes surprising results can occur when the courts, without perhaps realising it, engage in judging about art, as occured in the 2006 decision of the New South Wales Supreme Court involving the Archibald Prize.
The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law  [cached]
Andrea Lollini
Utrecht Law Review , 2012,
Abstract: This article aims to analyse the phenomenon of the diffusion of interpretive paradigms or argumentation models between constitutional courts. This phenomenon involves the importation of parameters - defined here as extra-systemic to a specific legal system - and the use of the comparative method in applying constitutional texts. The main subject of this study is the analysis of the first 11 years of South African constitutional jurisprudence, which is a convenient scenario since a constitutional provision enables the Constitutional Court to 'consider foreign law' when interpreting the Bill of Rights. In fact, this led to the wide use of foreign jurisprudence and legislation (from which were extracted argumentation models, patterns of balancing between principles and sometimes actual normative 'meanings'): in other words, extra-systemic legal inferences. This article shows the existence of several patterns of legal argumentation based on foreign law which were developed by the South African Constitutional Court.
The role played by the South African human rights commission's economic and social rights reports in good governance in South Africa
D Horsten
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2006,
Abstract: The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.
The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa  [PDF]
D Horsten
Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad , 2006,
Abstract: The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.
Judicial accountability in the US State Courts Measuring court performance  [cached]
Richard Y. Schauffler
Utrecht Law Review , 2007,
Abstract: Current efforts at performance measurement in the state courts are described, situated in a global and historical context, using the framework of Pollitt and Bouckaert (2000). The structure of state courts in the US is described, with attention given to structural issues that affect implementation of performance measurement at the state and local levels. The history of prior attempts at court performance measurement is reviewed, along with current efforts in several states to implement performance measures based on the CourTools performance measures designed by the National Center for State Courts. General findings on the measurement of access and fairness and court employee satisfaction are presented. Challenges for ongoing court performance measurement are described.
The Role of Ethiopian Courts in Commercial Arbitration
HG Feyissa
Mizan Law Review , 2010,
Abstract: The role of arbitration in settling disputes which involves national and transnational commercial transactions is steadily growing in this era of globalisation. International and national rules governing various aspects of commercial arbitration have contributed to the effectiveness of arbitration as an alternative to litigation. The involvement of national courts is crucial to the overall efficacy of arbitration, both domestic and international. Instances calling for court intervention may appear at all stages of the arbitral proceedings. There is, however, a need to maintain a balance between the level of court involvement and the smooth functioning of arbitration – which is a contractual alternative to judicial dispute settlement. This article deals with the legal and practical role of Ethiopian courts during the three stages of arbitral proceeding, i.e., at the beginning of arbitration, during the arbitral proceedings, and after the end of the arbitration. And finally, I argue in favour of judicial restraint particularly during the first two stages of arbitral proceedings.
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