Department of Public Law

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A delicate balance : equality, non-discrimination and affirmative action in Namibian constitutional law, as compared to South African and U.S. constitutional law
(Stellenbosch : Stellenbosch University, 2002-12) Cassidy, Elizabeth Ann Kandravy; Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This thesis examines the constitutional law of equality, non-discrimination and affirmative action in Namibia, and compares it to that of South Africa and the United States. Namibian judicial interpretation in these areas seeks to balance the need to safeguard the internationally recognized human rights that the Namibian Constitution guarantees with the need to ensure that Namibian constitutional law is seen as grounded in Namibia's historical experience and culture. This latter imperative derives from the Namibian Constitution's origins in an international negotiation process, which has led to some popular criticism of the Constitution as foreign and imposed. As a result, Namibian courts have been careful to ensure that reliance on foreign precedent (where there is no local authority) does not diminish the Constitution's unique character and its suitability to the Namibian situation. To that end, the Namibian courts have given great weight to the role of current Namibian societal values in constitutional interpretation. In the areas of equality, nondiscrimination and affirmative action, Namibian courts have generally followed the South African approach, except with respect to discrimination on the basis of sexual orientation. The author concludes that the adoption of the South African approach generally makes sense for Namibia, and specifically criticizes the Namibian courts' approach to sexual orientation discrimination. The statutes enacted in Namibia to carry out the Constitution's equality and nondiscrimination guarantees, including in the area of affirmative action, are also considered. While these statutes have not yet been subject to judicial interpretation, it seems likely that future cases presenting issues arising under these statutes will necessitate the same balancing referred to above. The thesis begins with an overview of each Constitution's textual treatment of equality, non-discrimination and affirmative action, and a discussion comparing the background and basic structure of the three Constitutions. It then focuses on the judicial and legislative interpretation of the concepts of equality and nondiscrimination in Namibia, as compared to that in South Africa and the US. Following that, the author discusses the judicial and legislative interpretation of the concept of affirmative action in Namibia, also as compared to that in South Africa and the United States. The thesis ends with the author's conclusions and some predictions as to how the Namibian courts might rule on certain issues that seem likely to arise in these areas in the future.
Distribution of financial resources and constitutional obligations in decentralised systems a comparison between Germany and South Africa
(Stellenbosch : University of Stellenbosch, 2005-12) Brand, Dirk Johannes; Erasmus, M. G.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
In this dissertation a comparative study is made of the constitutional accommodation of the distribution of financial resources and constitutional obligations to the various spheres of government in Germany and South Africa. Both countries have decentralised or multi-level systems of government and can be classified, in terms of current studies on federalism, as integrated or cooperative federal systems. An overview of the historical developments, the political contexts, the fundamental principles and the constitutional frameworks for government in Germany and South Africa is provided as a basis for the in-depth analysis regarding the financial intergovernmental relations in these countries. This study has shown that economic theory is important in the design of decentralised systems of government and that political and socio-economic considerations, for example, the need for rebuilding Germany after World War II and the need to eliminate severe poverty in South Africa after 1994, often play a dominant role in the design and implementation of decentralised constitutional systems. The economic theory applicable to decentralised systems of government suggests a balanced approach to the distribution of financial resources and constitutional obligations with a view to obtaining the most efficient and equitable solution. In both countries the particular constitutional allocation of obligations and financial resources created a fiscal gap that required some form of revenue sharing or financial equalisation. The German financial equalisation system has been developed over fifty years and is quite complex. It attempts to balance the constitutional aim of reasonable equalisation of the financial disparity of the Länder with the financial autonomy of the Länder as required by the Basic Law. The huge financial and economic demands from the eastern Länder after unification in 1990 placed an additional burden on the available funds and on the financial equalisation system. Germany currently faces reform of its financial equalisation system and possibly also bigger constitutional reform. The South African constitutional system is only a decade old and the financial equalisation system that is less complex than the German system, is functioning reasonably well but needs time to develop to its full potential. The system may however require some adjustment in order to enhance accountability, efficiency and equity. A lack of sufficient skills and administrative capacity at municipal government level and in some provinces hampers service delivery and good governance and places additional pressure on the financial equalisation system. The Bundesverfassungsgericht and the Constitutional Court play important roles in Germany and South Africa in upholding the principle of constitutional supremacy, and make a valuable contribution to the better understanding of the constitutional systems and the further development thereof. This study has shown that clear principles in constitutional texts, for example, such as those contained in the Basic Law, guide the development of applicable financial legislation and add value to the provisions on financial equalisation and how they are implemented. These principles in the Basic Law are justiciable and give the Bundesverfassungsgericht an important tool to adjudicate the financial equalisation legislation. The study of the constitutional accommodation of the distribution of financial resources and constitutional obligations in Germany and South Africa is not an abstract academic exercise and should be seen in the particular political and socio-economic contexts within which the respective constitutions function. The need to give effect to the realisation of socio-economic rights, for example, the right of access to health services, places additional demands on the financial equalisation system. The South African society experienced a major transformation from the apartheid system to a democratic constitutional order that in itself has had a significant influence on financial intergovernmental relations. This dissertation focuses on a distinct part of constitutional law that can be described as financial constitutional law. This comparative analysis of the two countries has provided some lessons for the further development of South Africa’s young democracy, in particular the financial intergovernmental relations system.
Evaluation of the international law regarding humanitarian intervention in human rights abuses not breaching international peace and security
(Stellenbosch : Stellenbosch University, 2004-03) Du Plessis, Madri; Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: This study exammes, m stages of development, the existing law regarding humanitarian intervention, problems in respect of this law and cases of intervention. More specifically, intervention in human rights abuses not breaching international peace and security but rather posing a so-called threat to peace is examined. This information is used to consider whether more adequate provision can be made regarding circumstances of intervention to stop situations of grave human rights abuses sooner. From the law regarding humanitarian intervention, it is evident that the institution of intervention is illegal under the present UN legal system. Yet, in a time when the human rights culture has become so important that it forms part of the basis of international law, effective intervention is not being authorised by the Security Council. As a result, other actors have been intervening in cases of grave human rights abuses. These interventions need to be appropriate and well managed. Since the protection of human rights is as valid in non-democracies, as in any democratic state form, the study finds that human rights will benefit from dependence on legitimate authority. Attributing more importance to the Uniting for Peace Resolution could expand the role of the General Assembly. Humanitarian intervention also needs to be coupled with a commitment to address the causes of human rights abuses through conflict resolution and social reconstruction. The study concludes with some criteria/guidelines for the establishment of the legitimacy of intervention.
Die gelding van die volkereg in die Suid-Afrikaanse reg
(Stellenbosch : Stellenbosch University, 1990-12) Bezuidenhout, A. E. M. (Anna Elizabeth Martha); Erasmus, M. G.; Stellenbosch University. Faculty of Law. Dept. of Public Law .
ENGLISH ABSTRACT: According to Rumpf£ CJ in the Nduli decision, Roman-Dutch law is the fons et origo of the statement that customary international law is part of South African law. His sources, Fran~ois and Huber, are open to criticism because they are not Roman-Dutch authorities on this specific question, but the decisions in Ncumata v Matwa (1881-2), Du Toit v Kruger (1905), and Rex v Lionda (1944) emphasise that the reception of customary international law in South African law has taken place through Roman law. Various court decisions emphasise that the term Roman-Dutch law should not be interpreted narrowly, as it includes the common law of the whole of Western Europe and not only of the province Holland. If this quotation is interpreted in an ius commune context, it is clear why Rumpf£ CJ did not cite specific sources to prove his point: he accepted it as a given fact- as the jurists did in the middle ages. Roman-Dutch law serves only as a frame of reference out of which international law has developed. The courts therefore apply international law as international law and not as, for example, common law. Two important implications follow: firstly it means that customary international law need not to be transformed before the courts can apply the relevant rule and secondly that new rules of customary international law automatically form part of the law of South Africa. From the eighty South African court decisions discussed, it is clear that the courts do take judicial notice of customary international law. This justifies the statement that the judiciary regards customary international law as part of the law of South Africa since 1879. The influence of English law on this section of South African law must, according to Rumpf£ CJ, also be taken into account. The reason is that English law is the common law of the South African constitutional law which influences the application of international law by the courts. This can extend the courts' frame of reference. Only a fifth of the cases discussed refer to Roman-Dutch writers, and then only in a comparative sense. The South African courts rely mainly on Anglo-American decisions and tendencies. The South African courts follow their English counterparts by accepting the same qualifications on the general rule that customary international law forms part of the law of the land. The willingness of the courts to apply customary international law has diminished over the years especially in cases where state security features. It seems that politically contentious questions play an inhibiting role on the readiness of the courts to apply customary international law where conflict, real or imaginary, between customary international law and municipal law appears. Acts of state constitute the most important obstacle in the application of customary international law, because they could lead to the court abandoning its independent judicial function in favour of the executive. Because the South African courts follow the English law in this area also, it is assumed that safety measures developed there would be adopted by the South African courts to prevent their jurisdiction from being limited too easily. It is recommended that more attention should be given to the existence and application of customary international law principles and that a conscious effort must be made by the judiciary to resolve conflict between customary international law and municipal law and to do it in such a manner that due account is taken of the fact that in South Africa customary international law is part of the law of the land.
Human rights and the rule of law in Rwanda : reconstruction of a failed state
(Stellenbosch : Stellenbosch University, 2000-12) Sahinkuye, Mathias; Erasmus, M. G.; Pirie, S. C.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
ENGLISH ABSTRACT: Human rights denials have more characterised Rwandan history than their promotion and protection. When the Rwandan State emerged from Tutsi domination and colonialism, many Rwandans hoped that the era of liberty had at least dawned. But the reality has been a total disappointment and replicas of earlier abuses have emerged, despite the ratification by Rwanda of most international human rights instruments. This dissertation is premised on the assumption that Rwanda has failed as a democratic constitutional State, and the whole socio-economic-political system has gone wrong. Chapter one argues that disequilibrium was built into the Rwandan system before colonisation and evangelisation. There was a 'consensus' that Tutsis were a superior minority race, able to govern and dominate, well organised and accepted by their Hutu subjects. The colonists and the Catholic Church exploited this injustice for their indirect rule. In a world evolving towards the international human rights system, this had a very precarious foundation in Rwanda. Indeed, poor management of changes due to evangelisation, education and market economy led to the denial of human dignity. It exacerbated division in favour of Hutus rather than reinforcing national unity. Chapter two considers the Hutu regime as a failure of a democratic constitutional State in the postcolonial era, despite the promise to serve the interests of all Rwandans through democracy and respect for human rights. In a one-party State, a handful of Hutus have monopolised power and resources. The institutional infrastructure for the management of the State and protection of human rights was set up to safeguard the interests of the ruling group only and oppress the rest of the population. The Hutu government, particularly, took revenge on Tutsis that they killed, forced into exile and denied access to public affairs. Hutu opponents, real or imaginary, and people from other regions than that of the President were also denied such access. Separation of powers was purposely just a theory, whence a non-independent judiciary, interference of the executive in the functioning of other branches of government and abuse of legislative power became the reality. In order to perpetuate the ruling group's hegemony, civil society was hindered, while states of emergency were used to deny the right to life, liberty and the security of the person. Many other rights were also denied regardless of whether the denial was a legacy of the past or just a result of the undemocratic nature of the State and the underdevelopment of the country. The Hutu regime's failure to promote national unity resulted in a genocide which took the lives of many Tutsis and Hutus. Whereas the current Tutsi government presented itself as committed to democracy and human rights, Chapter three argues that it was a mutatis mutandis replica of the Hutu rule. Indeed, the State system and resources have been captured by a group of Tutsis while other Tutsis have been left without hope and Hutus have become second-class citizens, whence justice and national unity are in jeopardy. By avoiding to tackle the fundamental issue of nation-statehood, the United Nations have failed to maintain peace and security. The failure to condemn Ugandan aggression against Rwanda, the forced repatriation of refugees, and the non-prosecution of Tutsis involved in crimes against humanity have proved the demise of international law and the maintenance of the culture of impunity in Rwanda. The author nonetheless argues that respect for human rights and establishment of the rule of law are still possible through a process of reconciliation and reconstruction.
Individual criminal liability for the international crime of aggression
(Stellenbosch : University of Stellenbosch, 2008-03) Kemp, Gerhard; Erasmus, M. G.; Van der Merwe, S. E.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
Aggression is regarded as one of the core crimes under customary international law, but the definition of aggression is still contentious. At present there is no international instrument that provides for effective individual criminal liability for the crime of aggression. The Rome Statute of the International Criminal Court (ICC) provides for the inclusion of the crime of aggression within the court’s jurisdiction, but the Statute needs to be amended to include a definition of aggression and conditions for the exercise of jurisdiction by the ICC. This dissertation seeks to identify the elements of the international crime of aggression, for purposes of individual criminal liability. It is submitted that the creation of the ICC provides the international community with an historic opportunity to establish effective jurisdiction over the crime of aggression.

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Browsing Department of Public Law by browse.metadata.advisor "Erasmus, M. G."

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