PER: 2011 Volume 14 No 5
31 August 2011
- Demystification of the Inquisitorial System / Harms, LTC
- Seeking Deliberation on the Unborn in International Law / De Freitas, SA & Myburgh, GA
- Legislative Exclusions or Exemptions of Property from the Insolvent Estate / Evans, RG
- Pre– and Post–Trial Equality in Criminal Justice in the Context of the Separation of Powers / Wolf, L
- Unpacking the Law and Practice Relating to Parole in South Africa / Mujuzi, DJ
- The Concept of a "Decision" as the Threshold Requirement for Judicial Review in Terms of the Promotion of Administrative Justice Act / Williams, RC
This issue opens with an oratio by one of South Africa's most senior judges, the Honourable LTC Harms who suggests that the South African criminal justice system should learn from the experience of international criminal courts regarding a merger of elements from accusatorial and inquisitorial systems.
Shaun de Freitas and Georgia Myburgh of the University of the Free State argue that, if the protection of being human serves as the common denominator in the international discussion of human rights, and if human rights are deeply inclusive, however culturally and historically diverse, then failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due.
Roger Evans of UNISA contends that modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates.
In a comprehensive paper Loammi Wolf (commentator from Bochum, Germany) makes a case against the "re-Westminstering of the constitutional state" as appears to her to be happening in the South African criminal justice system. The piece deals inter alia with the constitutional position of prosecutors, executive interference in prosecutions, pardon and parole.
Parole in South Africa is also the theme of Jamil Mujuzi of the University of the Western Cape. He deals with parole as a privilege, the role of the executive and the legislature in the parole system, the period to be served before an offender is paroled, the stipulated non-parole period, and the courts' intervention in releasing prisoners on parole.
In a case note Robert Williams of the University of KwaZulu-Natal describes the first judicial commentary on the distinction between a "decision" as defined in the South African Promotion of Administrative Justice Act 3 of 2000 which may be reviewed judicially and a non-reviewable inchoate decision.
Editor: Professor Francois Venter / Edition editor: Professor Louis Kotze
The Concept of a "Decision" as the Threshold Requirement for Judicial Review in Terms of the Promotion of Administrative Justice Act (2011)The Promotion of Administrative Justice Act 3 of 2000 defines administrative action as “any decision [of a specified kind]" taken by specified persons or entities. The Act goes on to define decision as “any decision of an ...
(2011)The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services ...
(2011)The previous Westminster criminal justice system entailed a different kind of separation of powers insofar as it concerns the role of state prosecutors. In the Westminster system prosecutors are part of the executive branch, ...
(2011)The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there ...
(2011)International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide ...
(2011)Criminal procedure in South Africa is outdated and does not produce speedy justice. The Criminal Procedure Act requires a revamp. Lessons can be learnt from the inquisitorial systems but local lawyers have preconceived ...