UKZN STUDENT LAW REVIEW
DEVELOPING WRITING, DEVELOPING LAW
Second Issue of the UKZN Student Law Review
NOTE FROM THE MANAGING EDITOR
Welcome to the second issue of the UKZN Student Law Review! As promised, we have delivered two issues of the Review. This feat was accomplished through the hard work and dedication of our Editorial Team, and of course the contributors and reviewers (both student and staff).
This publication is another bumper issue with articles covering a wide range of legal topics – from constitutional law, criminal law, environmental law, public interest law, to regional and international law.
In keeping with our strong focus on social justice issues, Kameel Premhid opens this issue to review the independence of institutions supporting our constitutional framework with a case study of the Directorate of Priority Crime Investigation. Samantha Walford takes up the constitutional matters with the issue of executive accountability. Musa Kika then proceeds with an appraisal of public interest litigation in the first two decades of our democracy. Bhavani Thaker assesses the concept of the ‘best interests of the child’ in the context of child sex offenders being entered in the national register. Priyanka Naidoo takes a critical look at the topical issue of television coverage of court proceedings. The jurisprudence of international and regional law in the African context is then taken up by Simbarashe Tembo in a comparative survey of the work of the SADC Tribunal and the East African Court of Justice in Human Rights. Finally, the accountability of mining companies for environmental damage is examined by Tafadzwa Dhlakama in an analysis of the SCA decision in Harmony Gold.
2014 was an exceptionally productive year, with one issue, several workshops and other training programmes for our editors and reviewers under our belt. Sadly, we bid farewell to our Editor-in-Chief Musa Kika, who has served the Review with distinction, in various capacities, for the past two years. He moves on to postgraduate studies under prestigious scholarships, and he goes with our best wishes and congratulations. Fortunately, we have a balanced Editorial Team (highlighted elsewhere in this issue), ably led by Aideen Ross as our new Editor-in-Chief, to take us into 2015.
We hope you enjoy this issue, and wish you well for the coming academic year.
Professor Yousuf A Vawda
Managing Editor
January 2015
EDITOR-IN-CHIEF’S NOTE
Our inaugural issue was published in April 2014 to a warm welcome, and it was a huge success. Dreams came true and the hard work of our student Editorial Committee who had worked on it paid off. With a team comprising of a few more new editors, work for the second issue began in earnest immediately after launching the 1st issue, and a few months down the line, here we are presenting the 2nd issue of the UKZN SLR.
With two successful issues now, the future of the UKZN SLR can only be bright. In our short existence we have managed to bring students to write and articulate their ideas. We have managed to nurture students in that process, and we have managed to contribute to legal debate in the country, in our small way.
Going forward, exciting times lie ahead as we align ourselves with the vision and mission of the University of KwaZulu-Natal in research and transformation, and as we make our mark in the country’s legal landscape. The UKZN SLR has proved to be more than just a journal as we have sought to nurture student writing through other ventures, such as our partnership with the Yunus Mohamed Public Interest Law Award, which honours students who publish in public interest law, and the South African Law Reform Commission’s Ismail Mohamed Essay Competition.
The UKZN SLR will soon be availing plans to develop research and writing for our senior students in the law school as well as the use of indigenous languages in writing and publishing.
For now, enjoy our latest edition, made possible by our team of passionate, talented and dedicated student editors, with the able guidance and help of academics at the UKZN School of Law.
Musa Kika
Editor-in-Chief
January 2015
A LESSON IN INSTITUTIONAL INDEPENDENCE: THE CASE OF THE DIRECTORATE OF PRIORITY CRIME INVESTIGATION click here to read this article
Kameel Premhid
Alumni, Howard College; MSc Candidate, Oxford University (Rhodes Scholar)
Corruption is inimical to the progress of any nation. The ability of a state to police itself and others who engage in corrupt activities is paramount to ensuring that public money does public good. Institutional independence is thus crucial in order for state agencies engaged in anti-corruption activities to carry out their mandate without fear or favour in combating this social ill. Given the prevalence of corruption in South Africa, the decision of the ruling African National Congress (ANC) to abolish the relatively independent and highly successful Directorate of Special Operations (DSO), or the ‘Scorpions’, and replace it with a unit which later became known as the Directorate of Priority Crime Investigation (DPCI), known as the ‘Hawks’ was astounding. This was especially so given that the Hawks were to be located within the South African Police Service (SAPS) over which the ruling party could exercise more political control. These concerns were heightened by the fact that there existed a significant discrepancy between the specialisation, training, independence, remuneration and security of tenure (STIRS) of the DPCI and SAPS – all of which, it was alleged, would have had a negative impact on the attempt of any unit located within the SAPS to be as successful as the Scorpions were. Further, the fact that high-ranking members of the ANC, including President Jacob Zuma, were implicated in corruption investigations being conducted by the Scorpions, and their success in securing convictions, seems to explain why they found themselves in the ANC’s crosshairs. This paper examines the history of the DSO/DPCI, the Glenister and HSF judgments and what general lessons can be drawn. It argues that these two judgments, taken together, establish an important test for institutional independence in South Africa. The test, which effectively has two stages – firstly, whether an obligation exists to create an independent institution; and, secondly, whether the institution in question is objectively independent – is a significant boon to ensuring institutions are independent and able to properly fight corruption.
EXECUTIVE ACCOUNTABILITY – A NEW TYPE OF FIDUCIARY RELATIONSHIP AND MECHANISM OF ENFORCEMENT click here to read this article
Samantha Walford
3rd Year LLB Student University of KwaZulu-Natal, Pietermaritzburg
‘Corruption is the bane of our country (South Africa)...It is a fundamental threat to our constitutional democracy.’ Accountability is fundamental to democracy, transparency, public trust and service delivery.
It is increasingly necessary to hold the executive branch of government accountable for the manner in which they exercise their power. Due to the nature of power and governance, members of the executive must be held to a higher standard in order to protect the interests of the State and its citizens. The question that emerges is against what standard members of the Executive should be held to and does the State effectively enforce accountability and if not, what should change?
The current mechanisms of accountability governing members of theExecutive will be assessed within the context of a fiduciary relationship and thereafter compared with the fiduciary relationship between directors and companies. Both the standard of conduct required as well as the enforcement remedies will be contrasted to determine their effectiveness.
JUSTICE FOR THE POOR AND MANY: PUBLIC INTEREST LITIGATION IN SOUTH AFRICA THROUGH THE CASES - 20 YEARS OF IMPACT LITIGATION click here to read this article
Musa Kika
4th year LL.B Student University of KwaZulu-Natal, Howard College
This article will consider the nature and utility of public interest litigation as a vehicle to advance access to justice. The impact it has had in South Africa will be considered, focusing on selected precedent-setting cases both post-1994. Having identified significant achievements of public interest litigation in both apartheid and post-apartheid South Africa, a case will then be argued for the increased development and funding for public interest litigation. It will then be argued that public interest litigation is not an end in itself in the broader social justice movement in South Africa, but is a big part of it in bringing incremental change, hence the need for strategic litigation involving pre-planning and post litigation lobby and advocacy for implementation of results and for further change.
CHILD’S PLAY: A CRITIQUE OF J V NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER click here to read this article
Bhavani Thaker
4th year LL.B, University of KwaZulu-Natal, Howard College
Children, as a vulnerable group in society, receive utmost protection under the law in South Africa. This is evident from section 28 (2) of the Constitution of South Africa, 1996, the Child Justice Act 75 of 2008, and the Children’s Act 38 of 2005. There has been a recent development in our law to protect children from sexual offenders, which essentially gives effect to the Constitution and the various legislation which aim to protect children. The case of J v National Director of Public Prosecutions and Another1 is one such judgment which examined the constitutionality of the National Register for Sex Offenders (NRSO) in great detail. This paper will focus on the constitutionality of the NRSO. This will be done through an analysis of the recent Constitutional Court judgment of J v National Director of Public Prosecutions and Others (CCT 114/130) [2014] ZACC. A critique of the Constitutional Court will be included in conclusion. This critique scrutinises the failure of the Constitutional Court to adequately apply the limitations analysis (as provided for in section 36 of the Constitution) upon finding that the NRSO limits the rights of child sex offenders (insofar as it fails to have their best interests as paramount importance).
A MOVE FOR A CHANGE IN PROCEDURE: COURT PROCEEDINGS TO BE BROADCASTED click here to read this article
Priyanka Naidoo
3rd year LL.B, University of KwaZulu-Natal, Howard College
In Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius, In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others, Mlambo JP partially granted an application brought by the electronic, broadcast and print media for the criminal proceedings in S v Pistorius to be broadcast. He took into account the principle of open justice, precedent, and conflicting rights and interests. This trial is the first in South African history to be broadcast, albeit partially due to the various limitations ordered by Mlambo JP. As it stands, court proceedings cannot be televised unless an application requesting such is granted. It is argued that there is an alternate and better method of determining whether to broadcast proceedings or not. It should be made mandatory that before the main court proceedings ensue, a court must conduct a test to determine whether the proceedings should be televised. This solution ensures that all parties’ constitutional rights (like the right to a fair trial and the right to free expression) are equally respected. This article explores a current debate: the need for broadcasting court proceedings.
AN ANALYSIS OF THE SADC TRIBUNAL AND THE EAST AFRICAN COURT OF JUSTICE; A HUMAN RIGHTS PERSPECTIVE click here to read this article
Simbarashe Tembo
4th year LL.B, University of KwaZulu-Natal, Howard College
This article seeks to explore the role played by the East African Court of Justice and the Southern African Development Community Tribunal in the protection of human rights. The author will pay particular attention to the cases of Katabazi v Secretary General and Mike Campbell v Republic of Zimbabwe decided in the East African Court and the SADC Tribunal respectively. The two cases had various implications and they set out significant jurisprudence in both regions. The Katabazi case extended the jurisdiction of the court thereby giving it power to adjudicate in human rights matters. The SADC Tribunal decided that it had a human rights jurisdiction, however, contentious. Whilst the East African Court’s decision was well received, the SADC Tribunal was not, leading to its suspension. The importance of regional human rights systems is acknowledged and a call for an unconditional reinstatement of the Tribunal made.
A NOTE ANALYSING THE DECISION OF HARMONY GOLD MINING COMPANY LTD V REGIONAL DIRECTOR: FREE STATE DEPARTMENT OF WATER AFFAIRS 2014 (3) SA 149 (SCA) click here to read this article
Tafadzwa Dhlakama
LL.M Student University of KwaZulu-Natal, Pietermaritzburg
South Africa has been benefiting from the proceeds of the Witwatersrand gold rush since the 1870s, but in the midst of this great economic benefit to the nation, the environment has been paying the price. It is due to the effects of such uncontrolled activities that measures are now emerging aimed at reducing and redressing the consequences to the environment as a result of mining activities in the form of Acid Mine Drainage (AMD). South Africa’s Klerksdorp-Orkney-Stilfontein Hartbeesfontein (KOSH) area has been severely affected and is where most gold mining companies mine. One of the measures that have been put in place is the enactment and implementation of various environmental statutes meant to redress the prevailing and retrospective environmental pollution causing activities that have or are occurring in South Africa. This essay will critically analyse the recent judgement delivered by the Supreme Court of Appeal which found Harmony Gold liable for the remediation efforts aimed at alleviating the effects of AMD as a result of the directives issued under the National Water Act (NWA) regardless of the fact that Harmony Gold was no longer the current owner of the mine…