Lady Hale in the South African Courts

Under the "complementarity" regime of the Rome Statute of the International Criminal Court (ICC), the jurisdiction of the ICC is secondary to the jurisdiction of domestic courts. States Parties, not the ICC, have the primary responsibility of investigating and prosecuting international crimes. The ICC acts only when States are "unable" or "unwilling" to prosecute. As a State Party, in order to give effect to the complementarity principle, South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts.
 The Implementation Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on the territory of South Africa but also when they are committed outside the Republic. By granting South African courts jurisdiction over a person who commits a crime outside the Republic when that person is later found on South African territory, without regard to that person's nationality or the nationality of the victims, the Implementation Act empowers South African courts with universal jurisdiction over international crimes.
 This paper seeks to determine whether and to what extent foreign State officials, such as foreign heads of State, heads of government and ministers of foreign affairs, can plead immunity when they are accused of international crimes before South African courts when exercising their universal jurisdiction in terms of the Implementation Act and in accordance with the complementarity regime of the Rome Statute. In other words, the article endeavours to determine whether international law rules regarding immunities of State officials may or may not limit the ability of South African courts to exercise universal jurisdiction over international crimes committed in foreign States.

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties. It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.

Since its establishment in 1994, the South African Constitutional Court has been quite fearless in its citation of foreign precedents in its reasoning. Compared with that of similar adjudicative institutions elsewhere, the constitutional reasoning of the South African Constitutional Court is still in its infancy, but it has nevertheless earned itself high praise among observers worldwide. The Court has in particular been commended for some ground-breaking and courageous judgments which it handed down without casting either argumentative rigour or judicial self-restraint to the winds. Since its establishment in 1994 the Constitutional Court has cited foreign cases quite extensively. Although these cases deal with all matters of the law, especially human rights issues, the Constitutional Court's use of foreign cases in the area of religion is noteworthy.
 Against this background, this contribution remarks on the propensity of the Constitutional Court to look beyond its borders to deals with issues of religion within South Africa. The ultimate question is whether the notion of transjudicialism in the case of religion is detrimental to the reputation of the South African Constitutional Court or whether it is a characteristic of a court which is confident enough that its independence will remain intact in spite of its looking elsewhere for answers.

In 2010, retired Justice Albie Sachs of the South African Constitutional Court was giving a series of lectures on his recently published autobiography, The Strange Alchemy of Life and Law . As part of that series, Justice Sachs came to New York University School of Law, where I teach, for a public event on the role of a constitutional court with my colleague Jeremy Waldron and myself. Our inquiry was on the role of a court in the transition from an unjust to a just regime, and on how a court addresses the question of the frailties of an emerging democratic society. Jeremy Waldron is famously protective of the dignity of the legislative process and critical of judicial review of legislative enactments. My views, as will be evident from this book, are notably different, and I defend the importance of judicial oversight of some of the characteristic vulnerabilities of democratic rule. The discussion with Justice Sachs grounded the divide in the role of courts in the South African experience. The South African Constitutional Court has actively engaged the political process during the transition process and beyond, a theme I develop in subsequent chapters. Alone among courts anywhere in the world, the constitutional court was tasked with assessing the first draft of the constitution for its conformity with core democratic principles, and indeed found the draft wanting. This was the world's first unconstitutional constitution. While Justice Sachs strongly defended the active role of the South African court in the transition from apartheid to multiethnic democratic rule, he was cautious about the relation between the emerging South African jurisprudence and American constitutional doctrines. According to Justice Sachs, it was difficult in any new democracy to resist the gravitational pull of American constitutional law, particularly for an English-language constitutional court. It was not simply the longevity of American democracy and the U.S. Constitution, but the commanding language and arguments honed by the U.S. Supreme Court over centuries of constitutional debate.

The United Nations (UN) Convention on the Rights of the Child, 1989 (CRC), the African Charter on the Rights and Welfare of the Child, 1990 (ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children's Act 38 of 2005 (Children's Act) place an obligation on South African courts to determine children's views in their parents' family law matters. This article analyses thirteen judgments stretching from 2003 - 2020 and one 2018 psychological study in relation to parenting plans to ascertain how South African courts determine children's views and wishes in practice. The judgments selected relate to divorces and disputes regarding children's primary residence and care and contact (custody and access disputes), disputes where a parent intends emigrating with children, and matters were a parent abducted a child. The judgments indicate courts have diverging approaches to determining children's views and wishes in family law matters. The 2018 psychological study found legal practitioners unfortunately fail to take into account children's inputs for purposes of drafting their parents' parenting plans. In light of courts' diverging approaches to determining a child's voice in their parents' litigious matters, as well as the current complete lack of guidelines in this regard, there is a need to amend the Children's Act to assist courts with particular regulations or guidelines in this regard. If courts are equipped with guidelines to direct their determination of children's views and wishes in family law matters, this will result in a more certain, and more congruent approach and most importantly, it will assist courts to pay heed to their duty to properly hear the voice of the child.

The South African Constitution is regarded as an international-law friendly constitution. Much has been written about the willingness of South African courts to refer to international law instruments when interpreting and applying South African law. Yet, the extent to which South African courts have applied recognised tools and methods for the identification and interpretation of international law has not similarly been considered. The recent case concerning South Africa’s decision not to arrest the President of Sudan, Al Bashir, highlights the importance of a proper approach to the interpretation and identification of international law by South African courts. In this case, the Supreme Court of Appeal had to consider the complex interrelationships between two treaties, namely, the AU South Africa host country agreement and the Rome Statute of the International Criminal Court, customary international law and a UN Security Council resolution. The objective of the article is not to determine the correctness or not of the decision. Rather, the article is aimed at assessing the Court’s approach to the methodological questions of interpretation and identification of international law. The article, therefore, evaluates whether the rules of interpretation as contained in the Vienna Convention on the Law of Treaties have been applied by the Court in searching for the meaning of the instruments under consideration. It also assesses whether the relationship between the various sources of international law at play in the Al Bashir matter is adequately considered.

The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts.
 The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunal and, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. 
 Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law. 
 Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether we should opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated.

The purpose of this discussion is to note the application of the maintenance statutes vis-à-vis Muslim couples in the South African courts. Firstly, the important judgments are referred to in chronological order; secondly, the maintenance rights of a Muslim spouse are set out for the following periods: during the marriage, after death of her husband and postdivorce; and lastly, the jurisdiction of the courts are discussed in light of the changing mores of society. In short, the question is how far the South African courts have gone in making the South African legal maintenance legislation accessible to Muslim wives. The issues are discussed in light of the Islamic family law as interpreted by the South African courts and with reference to the draft bill.

The state law of South Africa consists of the common law and the customary law. However, in reality there exist various cultural and religious communities who lead their private lives outside of state law. For example, the Muslim community in South Africa is a close-knit community which lives according to their own customs and usages. Muslims are subject to informal religious tribunals whose decisions and orders are neither recognised nor reviewable by the South African courts. The non-recognition of certain aspects of Muslim personal law causes unnecessary hardships, especially for women. A Muslim woman is often in a "catch two" situation. For example, on the one hand her attempts to divorce her husband in terms of Muslim law may be foiled by the relevant religious tribunaland, on the other hand, the South African courts may not provide the necessary relief, because they might not recognise the validity of her Muslim marriage. Increasingly, South African courts are faced with complex issues regarding the Muslim community. The last few years there has been a definite change in the courts' attitude with regard to the recognition of certain aspects of Muslim personal law. Contrary to pre-1994 court cases, the recent court cases attempt to develop the common law to give recognition to certain aspects of Muslim personal law. This article attempts to give an overview of the recent case law that dealt with issues regarding the recognition of aspects of Muslim personal law. Another issue, which eventuates from the current situation, is whether the South African legal order should continue to have a dualistic legal order or whether weshould opt for a unified legal order or even a pluralistic legal order. In order to address this issue, some comments on the current status of Muslim personal law will be made and, finally, in order to contribute to the debate regarding the recognition of Muslim personal law, optional models for the recognition of Muslim personal law will briefly be evaluated.

Reviewed by: Socio-Economic Rights: Adjudication Under a Transformative Constitution Elizabeth Brundige, Adjunct Professor and Associate Director Avon Global Center for Women & Justice (bio) and Sital Kalantry, Associate Clinical Professor of Law and Director of the Cornell International Human Rights Clinic (bio) Sandra Liebenberg , Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co. Ltd., 2010), 541 pages, ISBN 9780702184802. I. Introduction The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country's current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes of the South African Constitution.1 This nuanced and engaging account stands as a masterful reference work for scholars and legal practitioners interested in the development of South Africa's socioeconomic rights jurisprudence. At the same time, the very detail and comprehensiveness of the book's discussion of this jurisprudence tends, in some places, to overshadow Liebenberg's normative analysis. Additionally, it is not always readily apparent, particularly to readers who are not well-versed in South African case law, where the book's descriptive passages end and Liebenberg's prescriptions begin. However, the normative proposals that Liebenberg offers are both principled and practical, and they make an important contribution to global debates about how courts can and should give effect to social and economic rights. Among other things, Liebenberg points out the challenges that South African courts have encountered in deciding cases involving socioeconomic rights. South Africa's constitution is unique in its robust protection of a wide array of socioeconomic rights,2 express commitment to substantive equality and social justice,3 embrace [End Page 579] of international and foreign law,4 and horizontal application of rights to disputes between private parties.5 Nonetheless, courts around the world confront many of the same challenges South African courts have dealt with when they seek to enforce socioeconomic rights. We focus on three of the most salient problems and demonstrate how a court in another country (the New York Court of Appeals) has wrestled with and addressed these challenges. We also discuss Liebenberg's prescriptions for how courts should engage with these issues. First, courts have struggled with creating an appropriate framework to evaluate government policies (or lack of policies) with regard to socioeconomic rights. In adjudicating socioeconomic rights cases, courts must develop a vision of the appropriate approach the government should take. Courts are reluctant to do this for a host of reasons, including a belief that such work is inconsistent with the role of the judiciary. Second, if a court does determine that a government action or inaction violates the constitution, then it encounters difficulty in crafting appropriate remedies, in part because the appropriate remedies in these cases often impact many individuals and require potentially sweeping policy changes. Linked to both of these points is a set of challenges relating to the doctrine of separation of powers. When courts adjudicate cases that affect budgets or have wide-scale impact, they confront internal and external concerns about the decision's potential to impinge upon the authority of the legislative or executive branch of government. Courts in the United States, not generally known for their receptivity to socioeconomic rights, have addressed these challenges in the context of the right to education. Because the US national constitution does not guarantee socioeconomic rights, international scholars and practitioners rarely look to American jurisprudence when comparing approaches to socioeconomic rights adjudication. However, the constitutions of all US states but one include right-to-education provisions.6 This essay focuses on...

The relationship between international law and South African legal order has been much examined. However, that of the African Charter on Human and Peoples’ Rights and the South African legal system has not been seriously explored. Therefore, this article examines the status of the African Charter under the South African legal system. It adopts a doctrinal approach and analyses ss 231(4), 231(5) and 232 of the Constitution of the Republic of South Africa, 1996 within the context of South African law and international human rights norms in Africa; and how South African courts have treated the African Charter. It finds that the African Charter has not been enacted into law under s 231(4), implying that it does not operate in South Africa and that South African courts have not seriously regarded the African Charter. Nonetheless, it argues that the Charter directly operates in South Africa under s 231(5) as a deemed Act and as customary international law under s 232. It further argues that the Charter as a deemed Act is inferior to the Constitution, maintains a co-ordinate status with other Acts implementing human rights treaties, higher in status than other Acts implementing other treaties and ordinary Acts. As customary international law, the Charter is inferior to the Constitution and statutes but higher than common law. Both the Charter as a deemed Act and as customary international law operate at the same time in South Africa. It concludes that the African Charter is a statute in South Africa and that South African courts have no choice but to apply it when required.

This article compares the ways in which Australian and South African courts have approached issues of classification and renvoi where a defendant argues that the action is time-barred. There are two differences in approach. First, Australian courts classify all statutes of limitation as substantive, whereas South African courts distinguish between right-extinguishing statutes (substantive) and merely remedy-barring statutes (procedural). Second, the High Court of Australia has used renvoi in the context of the limitation of actions whereas South African courts have yet to decide on whether to use renvoi. This article assesses the impact of those differences in various situations.

There has been speculation in South African law in recent years regarding the nature and scope of the powers and duties conferred on the local competition authorities. This is due in part to divergent opinions in case law surrounding the nature and scope of the powers of the competition authorities, the interpretation of provisions relating to administrative penalties as well as the introduction of new criminalising provisions by the Competition Amendment Act 1 of 2009. Given that Chapter 5, Part B of the Competition Act already provides the Competition Tribunal with powers comparable to those of a prosecuting authority when dealing with complaints referred to it, procedural fairness in competition law enforcement proceedings, as well as the nature of remedies demanded and imposed in these proceedings, have become pertinent issues for analysis. Whereas some maintain that the powers and duties of the competition authorities are necessary to abide by the stated objectives of the Act, and that the administrative penalties commonly imposed on contravening firms are purely administrative and a form of equitable relief, others argue that the system is frighteningly similar to criminal procedural systems, and as such should be held to a higher standard and burden of proof at all times. This article attempts to identify and elaborate on the core issues related to the above and seeks to determine what position, if any, should be adopted by our courts and legislature to address them. First, a brief analysis of the historical development of South African competition law will be undertaken, with special emphasis on identifying the intention of the legislature. Thereafter a review of how the relevant provisions (and the legislature's intent) have been interpreted by South African courts is conducted, whereafter the traditional approach to the difference between criminal and civil procedure is examined. In this regard, a comparative analysis will illustrate how the situation has unfolded in foreign jurisdictions, specifically those of Canada, the European Union and the United States. These jurisdictions have been chosen, in particular due to their similarities with South African competition law, as well as the fact that South African courts often refer to them for guidance when developing its competition jurisprudence. Finally, a brief concluding overview shall be provided.