Research Articles (Constitutional Law and Philosophy of Law)

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Browsing Research Articles (Constitutional Law and Philosophy of Law) by Author "Pretorius, J. L."

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    Legal evaluation of affirmative action in South Africa
    (Faculty of Law, University of the Free State, 2001) Pretorius, J. L.
    English: With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions.
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    Prosecuting the main perpetrators of international crimes in Eritrea: possibilities under international law
    (Faculty of Law, University of the Free State, 2008-12) Mekonnen, D. R.; Pretorius, J. L.
    English: A growing international consensus has emerged in the last few decades on the need to prosecute egregious violations of international law. In this regard, the establishment of the International Criminal Court (ICC) is seen as a landmark development in the global protection of international human rights and humanitarian law standards. Since its independence in 1991, Eritrea has experienced heinous violations of international law. The violations amount to international core crimes, as defined by the ICC Statute and customary international law. These include crimes against humanity, war crimes and the crime of aggression. There are consistent reports, as well as documentary and testimonial evidence from reliable sources on this. Accordingly, a number of high-ranking government officials may be reasonably suspected of involvement in the perpetration of international crimes in Eritrea. However, Eritrea is not a state party to the ICC Statute and this means that many of the international crimes perpetrated in the country may not fall under the jurisdiction of the ICC. On the other hand, violations are continuing with impunity, as there are no effective domestic remedies to rectify the problem, giving rise to the need for immediate intervention by the international community. The article discusses the legal implications of the ICC Statute with regard to international crimes committed in Eritrea before and after the coming into effect of the Statute. Drawing on the latest developments of international criminal law, it explores possible options for the prosecution of the main perpetrators of international crimes pursuant to Security Council referral as stipulated under article 13(b) of the ICC Statute.
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    The unresolved search for the proper standard of review of affirmative action: Solidarity obo Barnard v SAPS
    (Faculty of Law, University of the Free State, 2013-12) Pretorius, J. L.
    In Solidarity obo Barnard v SAPS, the Supreme Court of Appeal (SCA) set aside the order of the Labour Appeal Court (LAC), which upheld the decision of the National Commissioner of Police not to appoint a white female (Barnard) to the position of superintendent in the National Evaluation Services Division of the South African Police Service (SAPS). The most important issue raised by the judgments is the proper standard of review of affirmative action measures in terms of section 9(2) of the Constitution and section 6(2)(a) of the Employment Equity Act (EEA). The Labour Court (LC), the LAC and the SCA all subscribed to different versions of what the standard of review ought to be. In so doing, they also applied different interpretations of the leading judgment of the Constitutional Court on affirmative action, Minister of Finance v Van Heerden. In this note, the different interpretations will be identified and analysed.