Suchergebnisse

Professor Dana van der Merwe of the University of South Africa (UNISA) delves into the impact of the information era on the law, drawing distinctions with the aid of legal philosophy between data, information and intelligence. o In similar vein Dr Tanya du Plessis of the University of Johannesburg investigates the impact of information and communication technology on the practice of law and knowledge management in law firms. o Professor Anneliese Roos of UNISA follows with an in-depth and comparative exposition of statutory data protection with specific reference to the legislation of New Zealand, illustrating important disadvantages for participants in the information technology arena in South Africa.

This second edition of 2006 offers an interesting range of topics, in this instance all covered by South African authors. In her analysis of the "institutions supporting constitutional democracy" established by the South African Constitution, Professor Christina Murray of the University of Cape Town argues that thethe institutions share the roles of providing a check on government and of contributing to transformation. The newness of democracy, the great demands on the state and the political dominance of the governing party in South Africa are identified as the greatest challenges of the institutions discussed.

In dealing with the influence of political considerations on the Constitutional Court's interpretation and application of the Bill of Rights it appears to be useful to first consider the meaning of "politics" in the judicial context, then to determine the considerations when politics are alleged to require the recusal of a judge and lastly to describe the Constitutional Court's position on judges and politics.

The Preamble and Chapter 1 This contribution is intended to be the first installment of a systematic interpretation of the Constitution of the Republic of South Africa 1996. Due to the foundational and repetitive reference in the text to values, regard must constantly be had to those values when this Constitution is interpreted. Even though the preamble does not contain positive norms, is an important interpretive source of the foundations of the Constitution. An important deviation from the preamble of the 1993 Constitution, is that the term Rechtsstaat ("constitutional state") is not employed. The introduction of this notion in South African law and its meaning in general is described. With reference to relevant dicta in recent constitutional cases, the Constitutional Principles in terms of which the 1996 Constitution was formulated and the text of the Constitution itself, it is argued that this is essentially a Rechtsstaat Constitution, but that the divergence in the range of constitutional values creates the danger of the constitutional state floundering in the waters of the social state. Section 1, being the foundational provision, is not unamendable, but it is very tightly entrenched. The most profound values of the Constitution are set out in this compact formulation. The question is inevitably raised whether, where values have to compete for precedence in concrete circumstances, a hierarchy of values must be construed. An analysis of section 1 in the context of other relevant provisions of the Constitution reveals that human dignity is the primary nuclear value of the Constitution, supported by equality and freedom. Democracy, supremacy of the Constitution and the rule of law are structural and procedural values of the Constitution subordinate to the nuclear values and non-racialism and non-sexism are derived values. How it is possible for a constitution to be superior law, as section 2 provides regarding the 1996 Constitution, is analysed against the background of the social contract theory. The weaknesses of this theory are exposed and it is argued that the force external to the Constitution that guarantees its primacy, is its practical legitimacy, i.e. sufficient support or acceptance of the authority of the Constitution by the citizenry. Section 2 is phrased in strong terms and means that no juridically relevant conduct, be it of a private or public law nature, can escape the test of constitutionality. In the interpretation of section 3 the nature of citizenship and nationality is analysed with reference to international authorities and definitions of these concepts are developed. The legal implications of citizenship in the context of the Constitution are set out and the historical context of citizenship having been used in pre-constitutional times as an instrument for creating separate ethnic states, is described. The current post modern tendency in places to devalue citizenship is contrasted with the importance being attached to the notion in South Africa in the context of nation building and the employment of expatriates. Regarding sections 4 and 5 the formal regulation of the national anthem and national flag is described. The national anthem may be amended by presidential proclamation, but changes to the national flag require an amendment of the Constitution. Section 6, which deals with the complex language matter, protects linguistic diversity rather than the status of any languages. The Constitutional Court has determined that, although no express provision to this effect exists, individuals are entitled to use the language of their choice in their dealings and communications with the government. The state is required to promote "the indigenous languages of our people." This is interpreted to include the nine official indigenous African languages, Afrikaans, Khoi, Nama and San. In the determination of language policies Municipal Councils are required to take the language usage and preferences of the inhabitants into account and in the national and provincial at least two official languages must be used. Essential facts regarding language usage, demographic distribution, etc. must be taken into consideration for the determination of a language policy to conform to the Constitution.

"Transformation" is not defined in parliamentary legislation or the Constitution. Nevertheless, the policy documents of the Government and the ANC bestow immense importance on the notion, which bears significant ideological, political, legal and constitutional implications. The dictionary meaning of transformation suggests change, conversion, modification, etc. The ANC (2012:3) has described its "principal task" as being "to mobilise all strata and classes, including the new social forces born out of our democracy, around the national programme of transformation to build a national democratic society". This choice of terminology is no coincidence, because it is based on the organisation's main strategy known as the "National Democratic Revolution" (NDR). Its essential goals are "the liberation of Africans in particular and Blacks in general from political and socioeconomic bondage" and "liberating the white community from the false ideology of racial superiority and the insecurity attached to oppressing others". The history and thrust of the NDR show that it is uncompromisingly founded upon the tenets of Marxism-Leninism. Although it is hardly politically correct to interrogate the continued communist rhetoric with which the ANC's policy documents are infused, one cannot assume that such rhetoric is merely hollow prolixity. Sentiments supportive of fundamental social and economic change can be found in both the 1993 and 1996 Constitutions. No doubt these noble goals, if realised, could embody cornerstones in the transformation of the complex and conflicted South African society towards a stable citizenry with common expectations for social justice. These are, however, not the goals expressed in the NDR. Legal academic discussion of transformation has not contributed much to the clarification of its meaning. A 1998 publication of Karl Klare, a prominent exponent of Critical Legal Studies, has strongly influenced academic and judicial thinking to understand transformation to be a project aimed at comprehensive social change to be brought about by employing the law to effect wholesale egalitarian social transformation beyond mere reform, stopping just short of revolution. From a brief survey of legislation relating to schools, the fisheries industry and labour relations, it is clear that the legal meaning of transformation remains vague and undefined, causing the courts to be similarly ambiguous when called upon to correlate government policies with constitutional injunctions. Using the same vague and elastic term in ideological statements and in the law, provides politicians with the opportunity to pursue revolutionary goals under a cloak of constitutional propriety. Although ideological transformation is useful to offer unspecified political promises of alleviation of past and present suffering, in reality it has thus far mostly promoted the interests of a relatively small black elite. Most of the electoral supporters of the ANC are poor and support the organisation "because of their material dependence on the ANC-controlled state" (Mbeki 2011:9). It is, however, becoming increasingly clear that the failure to build economic capacity among the growing number of poor South Africans through the predatory exhaustion of the means of a small component of society, renders ideological transformation self-destructive. Undefined transformation of the university sector is the aim of higher education legislation, which is to be specifically enhanced by the amendment bill of 2015, by empowering the Minister to unilaterally prescribe "transformation goals" to universities. Government's approach to higher education has been described as a process of implementing the NDR "to erode university autonomy in the name of 'transformation'" (Jeffery 2014:399). Espousing the termination of Afrikaans as academic language is seldom acknowledged officially, but it is obvious that the protection or promotion of the language is at the very least not considered to be desirable measured against the demands for transformation. Transformation is a rich and malleable concept useful for many purposes, both for selective advancement and retribution. The comprehensively beneficial potential of constitutionally sanctioned transformation has unfortunately been warped by the ANC's ideological conceptualisation of the notion and its subsequent implementation in the practice of the governments of the past two decades. Should the transformation of the university sector continue to be pursued according to this pattern, the future of higher education is bleak. Yet, it is not impossible that the political, economic and social configuration of power may change - if the remaining pockets of excellence in higher education could be saved from the ravages of the NDR, this might lead to a balanced process of transformation in the spirit of the Constitution.

"Die aktuelle südafrikanische Verfassungsrechtsordnung besteht seit nunmehr dreizehn Jahren - ein Zeitraum, in dem sie Veränderungen bewirkt hat, die letztlich den Konsolidierungsprozess der konstitutionellen Demokratie des Landes maßgeblich gefördert haben. Gemäß der Verfassung sind die Gerichte Südafrikas 'unabhängig und lediglich der Verfassung unterworfen, zu deren unparteiischer, vorurteilsfreier Anwendung sie verpflichtet sind'. Die Auslegung als richterliche Funktion ist hierbei kein mechanischer Prozess, und über die rechtliche Hermeneutik wird viel diskutiert. Mehrfach seit 1994 hat das Verfassungsgericht, dessen klare Kriterien etwa für den Umgang mit Befangenheitsanträgen begrüßt worden sind, Urteile zu politischen Streitfragen gefällt, wobei es auch um Fragen zum Konstitutionalismus und zur Demokratie ging. Ein Blick auf ausgesuchte Urteile des Gerichts der letzten Jahre lässt dessen Beitrag zur Stärkung der Demokratie des Landes erkennen. Wenn auch die Stichhaltigkeit mancher Urteile kontrovers diskutiert wird, so hat die Verfassungsrechtsprechung Südafrikas insgesamt doch Maßstäbe gesetzt, internationales Echo gefunden und der Entwicklung des Verfassungsrechts und der Politik des Landes richtungweisende Impulse verliehen." (Autorenreferat)

Rights, authority and valuesIn view of Johan van der Vyver's immense contribution to the clarification of the meaning of legal concepts, the establishment of terminology, the analysis of doctrines and the explanation of the foundations of matters, it is considered appropriate in this article to revisit a question which has occupied jurists since time immemorial, namely what a right might be. This question cannot be addressed without dealing with the context in which it stands. Therefore the fa te of the doctrine of subjective rights is firstly traced, after which the phenomena of human rights and fundamental rights are discussed Following these analyses, the question whether a single, comprehensive concept of right is viable is considered. In this context the need for the legal scholar to thoroughly consider the origin or justification for the existence of government authority is motivated. It seems as though unanimity about a concept o f right at anything beyond a relatively superficial, mechanical level is not really possible, but that a meaningful scholarly discourse on the matter is possible, at least among scholars who acknowledge the determining role of unverifiable presuppositions in the practice of scholarship. Finally it is argued that there is a connection between the values of the Constitution, the exercise of government authority and the development of a South African concept of right.