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Item Open Access Private military and security contractors: a face-off with the notion of direct participation in hostilities, in international armed conflicts(Faculty of Law, University of the Free State, 2012) Bosch, S.English: Private military and security companies (PMSCs) have become a significant feature in recent international armed conflicts. Under international humanitarian law, PMSCs are, for the most part, clothed with civilian status. As civilians, they are precluded from any direct participation in hostilities if they are to ensure their immunity against direct targeting, and yet they are increasingly performing duties once reserved for military personnel. This article analyses the functions traditionally undertaken by PMSCs in light of the International Committee of the Red Cross’s (ICRC) interpretation of what constitutes unlawful direct participation in hostilities. This analysis offers advice to PMSCs, and those opposing them, as to what activities might compromise their civilian immunity against attack. This article also explores the legal consequences which result when PMSCs elect to participate directly in hostilities, despite their civilian status.Item Open Access A history of attempts to delimit (state) law(Faculty of Law, University of the Free State, 2012) Strauss, D. F. M.English: Reflections on the nature of law and on the limits of the state’s law-making competence did not escape the distorting effect of individualistic and universalistic views of human society. While the Greek-Medieval era was largely in the grip of the latter, the former dominated early modernity up to the Enlightenment. From the urge to be free and autonomous since the Renaissance, the natural science ideal aimed at a rational reconstruction of the universe which, according to social contract theories, proceeded from its simplest elements, the individuals. The subsequent reflection on the nature of law appeared to be in the grip of the inherent tension between the science ideal (nature) and the personality ideal (freedom). This applies to theories of natural law, to Kant and Hegel, as well as to the historical school, legal positivism and the subsequent developments in the 19th century. However, since the romanticism of the late 18th and early 19th century, both universalistic and individualistic theories continued to exert their influence until the 20th century. Cutting through all these developments, other conceptions also played a role, such as the idea of an eternal and immutable lex naturalis and the reaction of historicism and legal positivism which relativized these natural law claims – accompanied by the question of how one should understand constancy and change. A brief systematic alternative is outlined in the concluding remarks of the article.Item Open Access Proof of malice in the law of malicious prosecution: a contextual analysis of Commonwealth decisions(Faculty of Law, University of the Free State, 2012) Okpaluba, C.English: Generally, malice is a difficult term to define. But, as an element of the law of malicious prosecution, it is likened to spite, ill will or vengeance. In this context, malice represents improper purpose, one alien to the criminal justice system. It emphasises the dominant purpose for the prosecution as to whether it is an improper invocation of the criminal process. Although malice is a separate factor in determining malicious prosecution, it is indeterminate in nature as it tends to overlap with the requirement of reasonable and probable cause. Where the objective sufficiency of the material considered by the prosecutor in deciding to prosecute is satisfied, it is unlikely that malice can be imputed. Whereas from a lack of reasonable and probable cause improper purpose could be inferred. As malice contemplates deliberate intentional act, it is argued that negligence, whatever the degree, will not suffice.Item Open Access Application of the international classification of functioning, disability and health with specific focus on disabling hearing impairment in legislation and policy in South Africa(Faculty of Law, University of the Free State, 2012) Smith, M.English: Disability legislation faces two potentially contradictory perceptions. Persons with disabling hearing impairment (DHI) are committed to eradicating discriminatory attitudes and practices, and removing barriers to communication and integration. Legislation should be aimed at breaking down these barriers, and be designed to assist persons with DHI to overcome stereotyped assumptions about their disability and ability. To achieve these goals, a common framework for describing functional status information is needed in order to make this information comparable and of value. The World Health Organization’s International Classification of Functioning, Disability and Health (ICF), which has been approved by all its member states, including South Africa, provides a common language and framework to be used in legislation. This article analyses disability legislation in South Africa, with specific focus on DHI, in order to determine the application and definition consistency. It finds that some legislation includes some elements of disability. This endeavour may have extensive implications for the development of law and public policy to supplement the ICF and the Constitution of South Africa.Item Open Access Coordination of development approval processes revisited – Lagoon Bay Lifestyle Estate (Pty) Ltd v The Minister of Local Government, Environmental Affairs & Development Planning of the Western Cape and Others [2011] 4 All SA 270 (WCC)(Faculty of Law, University of the Free State, 2012) Olivier, N. J. J.; Williams, C.Abstract not available