JJS 2018 Volume 43 Issue 1
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Item Open Access The University of the Free State Faculty of Law/Write Site intervention: supporting broader access with the skills for success(Faculty of Law, University of the Free State, 2018) Snyman-Van Deventer, E.Item Open Access An examination of the legal status, powers and roles of the Justices of the Peace in the Nigerian legal system(Faculty of Law, University of the Free State, 2018) Akinloye, I. A.It is not uncommon to hear of State governments in Nigeria appointing people as Justices of the Peace or of people adding ‘JP’ as a suffix to their names. Justices of the Peace are judicial officers appointed to conserve peace and perform quasi-judicial and administrative functions. They are appointed as officers of the courts and form part of the actors and drivers of the nation’s legal system. However, it appears that, over time, their relevance within the Nigerian context is fading away and that the office is gradually being reduced to political patronage. Consequently, this article seeks to raise awareness of the roles of Justices of the Peace in resolving minor disputes and fostering peaceful coexistence among citizens. It also highlights some of the challenges in the system with the aim of proffering a holistic reform. The article argues that the nature of the appointment and the poor capacity development of Justices of the Peace are the major banes of their effectiveness in Nigeria. Following the comparison of the Nigerian regime with the position in Jamaica, the article recommends how Justices of the Peace can be better equipped to be more effective within the context of the Nigerian legal system.Item Open Access Critiques of the human rights framework as the foundation of a human rights-based approach to development(Faculty of Law, University of the Free State, 2018) De Man, A.During the 1990s, the human rights-based approach (HRBA) emerged as the newest development framework to address increasing global poverty and inequality. Under this approach, development objectives are determined by human rights standards and goals as set out in international treaties, conven- tions, declarations, and authoritative interpretations of rights. Beneficiaries of development programmes also gain legal rights against corresponding duty bearers, which supersedes moral claims for the fulfilment of development goals. Furthermore, human rights principles such as equality and non-discrimination, accountability, participation, empowerment and the indivisibility of rights form the cornerstone of a HRBA. However, the human rights framework, as the foundation for this approach, has come under severe criticism over the past few years. Significant disparities exist between that which is promised in the Universal Declaration of Human Rights and real-world respect for, and protection of human rights. This article aims to explore and analyse the most popular of these criticisms. These include critiques raised against the claimed universality of rights, inherent discriminatory practices, the inability of the framework to take account of practicalities and limitations, and the lack of effective protection and monitoring by United Nation’s bodies. It also explores emerging threats such as, for example, globalisation to the human rights framework. However, the framework has proven to be adaptable to these challenges. Practitioners and scholars are continuously working towards overcoming practicalities that impede the achievement of the protection and realisation of the human rights of all. In addition, the article examines critiques against the normative value of human rights as a product of natural law. However, the international human rights framework has gained widespread acceptance as the highest moral authority, as it is based on respect for human dignity and guaranteeing the freedom of all. The article demonstrates that the use of human rights language in lieu of other terms such as ‘goals’, ‘duties’, ‘interests’, ‘needs’, and ‘claims’ carries several advantages, the most important of which is the creation of rights holders with corresponding duty bearers. It also determines that, despite the numerous critiques examined, the human rights framework offers a solid, and the most accepted, foundation for development programming with a number of benefits.Item Open Access Educator accountability in South Africa: rethink section 10 of the South African Schools Act(Faculty of Law, University of the Free State, 2018) Reyneke, M.Twenty years after the abolition of corporal punishment in South Africa, shocking videos of educators administering corporal punishment surfaced during 2017. A much harsher approach to prosecuting offending educators as well as those who do not report corporal punishment is, therefore, justified. Although this is a feasible solution to the issue, it immediately poses a problem, because the South African Schools Act, the Employment of Educators Act and the Code of Conduct for educators do not include a clear definition of what constitutes corporal punishment. Without a clear definition, neither the criminal courts nor the South African Council for Educators can effectively prosecute educators. To strengthen the role of the law in eradicating corporal punishment, several legal sources are investigated in order to guide the debate as to what should be included in a definition of corporal punishment. Furthermore, the need to explicitly abolish other harmful forms of punishment, which cannot be classified as corporal punishment, is investigated. It is concluded that sec. 10 of the South African Schools Act should be amended to define the broad ambit of corporal punishment properly and to prohibit other forms of non-physical punishment that cause psychological and emotional harm to learners.Item Open Access Foreseeability: wrongfulness and negligence of omissions in delict – the debate goes on MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA)(Faculty of Law, University of the Free State, 2018) Neethling, J.; Potgieter, J. M.The case under discussion involved delictual liability for an omission. The appellant sued the respondent for damages, alleging that the respondent’s negligent omissions had caused or allowed a fire to spread to a plantation, of which the appellant was the beneficial owner. Relief was refused in the High Court and the appeal to the Supreme Court of Appeal was unsuccessful, Leach JA finding that negligence was not proved by the appellant. The most important aspect of Leach JA’s decision was his pronouncement that it is potentially confusing to take foreseeability into account as a factor determining both wrongfulness and negligence. Such confusion could lead to the conflation of these two delictual elements, resulting in wrongfulness losing its important attribute as a measure of control over liability. Accordingly, foreseeability of harm should not be considered in establishing wrongfulness; its role should be confined to the rubrics of negligence and causation. This aspect of the judgment can be supported because it accords with the ex post facto evaluation of wrongfulness, which excludes the utilisation of the ex ante reasonable foreseeability of harm. Be that as it may, until the Constitutional Court confirms Leach JA’s approach to foreseeability and wrongfulness, the question remains as to whether our law will not be impoverished by restricting foreseeability to negligence and legal causation, whilst, in doing so, also disregarding the numerous authoritative judgements acknowledging the role of foreseeability with regard to wrongfulness. Notwithstanding Leach JA’s rejection of the legal duty approach to the wrongfulness of an omission, this approach, which has become engrained in our law of delict, remains very important in establishing wrongfulness in the present field. As a matter of fact, Leach JA himself relied on previous decisions that applied the legal duty approach and also acknowledged the legal duty of a landowner to control or extinguish a fire on its land. However, the judge’s apparent use of negligence in limiting the absoluteness of the legal duty, may cause confusion between wrongfulness and negligence. Leach JA clearly favours the new test for wrongfulness (the reasonableness of holding the defendant liable) in the present context, despite criticism of this test and the fact that it is merely a recent formulation of one variation of the test for wrongfulness. However, there is no indication that the judge specifically applied the new test in establishing the wrongfulness of the respondent’s conduct. Therefore, if the judge endeavoured to set aside the traditional legal duty approach to establish the wrongfulness of an omission, his attempt was unsuccessful. Leach JA’s averment that the importance of the distinction between wrongfulness and fault is criticised by certain academics does not hold water. Finally, it should be borne in mind that foreseeability plays a different role with regard to negligence, on the one hand, and causation, on the other. Whereas, with reference to negligence, harm of a general kind should be foreseeable, foreseeability of the actual harm that has ensued is relevant as regards legal causation.Item Open Access Damages for wrongful arrest, detention and malicious prosecution in Swaziland: liability issues(Faculty of Law, University of the Free State, 2018) Okpaluba, C.This article draws from a wealth of unreported cases decided in the Kingdom of Swaziland in the past two decades relating to the deprivation of personal liberty, human dignity and other fundamental rights infringements arising from wrongful arrest, unlawful detention and malicious prosecution. It investigates and analyses the relevant constitutional rights and the statutory processes, the breaches of which constitute the common law ingredient of wrongfulness, upon which liability in delict is based. An attempt is made to state the contemporary law of arrest, detention and malicious prosecution in Swaziland in a nutshell, starting with the breakdown of the constitutional and delictual frameworks which necessarily leads to the discussion of the fundamental rights to personal liberty and the right to be brought before court without undue delay implicated in Army Commander v Bongani Shabangu [2012] SZSC 19; the constitutional right to human dignity and the delictual bases for the plaintiff’s cause of action in Government of Swaziland v Ngomane [2013] SZSC 73. The enquiry then proceeds to the discussion of the following issues: whether the arresting officer had reasonable suspicion to arrest; whether there was a prosecution; whether the prosecuting officer had reasonable and probable cause to prosecute, and whether the malice element was present to prove malicious arrest or malicious prosecution. Comparative materials are introduced in instances to broaden the discussion and highlight analogous developments elsewhere, while bearing in mind that the primary object of the investigation is to focus solely on the developments in Swaziland.Item Open Access Rights and religion; bias and beliefs: can a judge speak God?(Faculty of Law, University of the Free State, 2018) Tsele, M.The Constitution of the Republic of South Africa, 1996 guarantees everyone the right to freedom of expression and religion. The Constitution also places the power to resolve disputes impartially in the judiciary. The requirement that judges be impartial may, in some circumstances, mean that a judge’s beliefs or convictions may appear to be in conflict with one or more constitutional principles. This article analyses the relationship and apparent tension between a judge’s duty to apply the law in a fair and impartial manner and his/her own personal right to freedom of religion. More specifically, it examines the extent to which a judge may allow his/her religious beliefs to influence his judgment. It argues that judges, like all other citizens, do not surrender their rights to freedom of expression and religion when they are appointed to the bench, and that a judge who publicly expresses his religious beliefs should not be, ipso facto, without more ado, criticised for it.