Law Commons^™

A Pillar Of Democracy: Reflections On The Role And Work Of The Constitutional Court Of South Africa, Kate O’Regan

Fordham Law Review

No abstract provided.

Corrective Rape In South Africa: A Continuing Plight Despite An International Human Rights Repsonse, Roderick Brown

Annual Survey of International & Comparative Law

First, this paper will discuss the historical and societal basis for corrective rape, then, its scope and presence globally. Subsequently, the paper will introduce the laws and policies that should address the problem of corrective rape, and how the South African state and citizens violate them, including, first, the international human rights framework that existed before corrective rape came into the spotlight; then, it will address the recent developments that were instituted in response to violations of LGBTI rights globally. Finally, the paper will provide specific laws and policies that should be implemented in order to provide effective and durable …

Untold Stories In South Africa: Creative Consequences Of The Rights-Clearing Culture For Documentary Filmmakers, Peter Jaszi, Sean Flynn

Sean Flynn

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective filmmaking posed by escalatingcopyright clearance requirements.

The Legality Of Banning Online Gambling In South Africa: Is Online Gambling Not A Component Of Gambling?, Segoane Lawrence Monnye

UNLV Gaming Law Journal

In light of the potential income generating capability of online gambling and its perceivable threat to location based gambling, this Article examines the legality of banning online gambling despite the promulgation of the National Gambling Amendment Act, which is intended to legalize online gambling, and the constitutional implications of such ban. Part II examines the definition of gambling to argue that online gambling is a mere component of gambling. Part III provides the current legal framework governing gambling and its application to online gambling. Parts IV and V focus on the overall purpose of this Article, i.e. to scrutinize the …

Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi

Peter Jaszi

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements.

Legal Subsidiarity And Constitutional Rights: A Reply To Aj Van Der Walt, Karl E. Klare

Karl E. Klare

In South African constitutional jurisprudence, “legal subsidiarity” is a theory of the appropriate relationship between and hierarchy among various sources of law, particularly the Constitution, statutes, and the common law. Core tenets of the theory are that courts should avoid making a constitutional decision if a matter can be decided on a non-constitutional basis; that courts should ordinarily defer to legislation; and that courts should avoid any tendency to proliferate separate tracks or sub-systems of law (e.g., courts should not create parallel causes-of-action or remedies respectively grounded, respectively, on the Constitution itself, legislation, and/or the common law). This article generally …

The Hegemony Of English In South African Education, Kelsey E. Figone

Scripps Senior Theses

The South African Constitution recognizes 11 official languages and protects an individual’s right to use their mother-tongue freely. Despite this recognition, the majority of South African schools use English as the language of learning and teaching (LOLT). Learning in English is a struggle for many students who speak indigenous African languages, rather than English, as a mother-tongue, and the educational system is failing its students. This perpetuates inequality between different South African communities in a way that has roots in the divisions of South Africa’s past. An examination of the power of language and South Africa’s experience with colonialism and …

A Journey From The Heart Of Apartheid Darkness Towards A Just Society: Salient Features Of The Budding Constitutionalism And Jurisprudence Of South Africa, Dikgang Moseneke

Philip A. Hart Memorial Lecture

On April 4, 2012, Deputy Chief Justice Dikgang Moseneke of the Republic of South Africa delivered the Georgetown Law Center’s thirty-second annual Philip A. Hart Lecture: “A Journey from the Heart of Apartheid Darkness towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa.”

Moseneke earned a BA in English and political science, as well as a B Juris degree from University of South Africa and later completed an LLB. Justice Moseneke began his professional career in 1976 as an attorney’s clerk in Pretoria. In 1978 he was admitted and practiced for five years as …

Nonviolent Law? Linking Nonviolent Social Change And Truth And Reconciliation Commissions, James W. Mccarty Iii

West Virginia Law Review

No abstract provided.

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio

Lorenzo Di Silvio

On February 23, 2011, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. Of great significance in this announcement was the Administration’s position that classifications on the basis of sexual orientation warrant heightened judicial scrutiny. Notwithstanding this announcement, the level of review applied to sexual-orientation classifications—and the manner in which a court determines whether a particular type of classification deserves more searching review—is an open question, the answer to which typically dictates the outcome of challenges to government classifications. Apart from this outcome determinativeness, affording heightened scrutiny to some classifications but …

Some Preliminary Thoughts On The Law Of Neighbors, Jim Smith

Scholarly Works

A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.

Owners of neighboring parcels …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Facilitating Appropriate Whistleblowing: Examining Various Approaches To What Constitutes Fact To Trigger Protection Under Article 33 Of The United Nations Convention Against Corruption, Kristian Soltes

American University International Law Review

No abstract provided.

The Cause Lawyer’S Cause, Frank W. Munger

Articles & Chapters

The promise of human rights in South Africa may depend significantly on the course chosen by a professional and relatively independent South African judiciary. But what about the promise of human rights in other developing states which lack a judiciary with similar potential? Cause lawyers, increasingly visible in many of these new states, are presumed carriers of liberal legalism and democracy and celebrated for their courageous defence of human rights even in the absence of an independent court system. This comment argues that celebration of cause lawyers may reflect presumptions about their causes that are questionable even in the Global …