LLM / Department of Public Law

Text in English / The substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution. / Constitutional, International & Indigenous Law / LL.D.

Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.

The substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution. / Constitutional, International and Indigenous Law / LL. D.

Since 25 January 1994, when the interim Constitution came into operation, South Africa's criminal justice system became subject to constitutional provisions, especially the Bill of Rights. All forms of punishment and treatment are subject to the provisions of the Constitution. The first casualties were the death penalty and corporal punishment, which were found to be unconstitutional by the Constitutional Court. Since our criminal justice jurisprudence is still in the developing stage, a comparative analysis with the Canadian and American penal systems forms part of this thesis. Provisions of the Constitution, which will have an indirect influence on punishment include, access to information, just administrative action and state institutions supporting democracy. The following provisions of the Bill of Rights are expected to have a significant impact on punishment in all its facets, equality; human dignity; life; freedom and security of the person; freedom from slavery, servitude and forced labour; and the rights of children. Judgments of the Constitutional Court, which abolished the death penalty and corporal punishment are examined since they were the first indication the Court gave on aspects of punishment. The Constitution also deals specifically with the rights of arrested, detained and accused persons. It is within this provision that 2 the rights of prisoners are spelt out. Imprisonment as a form of punishment, has to conform to the provisions of the Constitution, and the Correctional Services Act is an attempt to render imprisonment compliant. With the abolition of the death penalty and corporal punishment, the effect of constitutional provisions on conventional forms of punishment and the overpopulation of prisons, the establishment of alternative forms of punishment, which would pass constitutional muster, is imperative. The Child Justice Bill is an attempt to establish a unique system for juveniles who commit offences / Penology / D. Lit. et Phil. (Penology)

Thesis (D. Lit. et Phil.)--University of South Africa, 2001.

The Native Territories Penal Code (NTPC) was passed by the Parliament of the Cape of Good Hope in 1886. It was part of the administrative machinery of the Cape colonial authorities for the Xhosa speaking people who occupied the area between the Great Kei and the Mtamvuna Rivers. However, it became the criminal code applicable to all people living in the Transkeian Territories regardless of race or colour. The Code was enacted ■following the recommendations of the Cape Government Commission on Native Laws and Customs (1883). Quite unexpectedly this Code exerted a great deal of influence on South African criminal law especially after union was formed in 1910. This was because the code was a document readily available to judges and magistrates in South Africa, and when a difficult question of law arose it was all very easy to say that the South Africa law on the point was as laid down in a particular section of the Code. In this way the Code also assisted in the importation of English law into South African lav;. Text book writers like Gardiner and Lansdown also contributed to the influence of the NTPC on South African criminal law. As time went on, however, South African jurists saw the mistake of the NTPC being recorded as a correct reflection of South African law in particular areas and set out to correct the position. Prominent among these are De Wet & Swanepoel and P.M.A. Hunt. They achieved a great measure of success in watering down the influence of NTPC on South Africa law , although it cannot be said that they eradicated it. So strong was Che influence of this Code that it was felt even as far away as Rhodesia and Bechuanaland (as they then w e r e ). / Criminology and Security Science / D.LI. (Criminology)

LL.M. / Please refer to full text to view abstract

LL.M. / Please refer to full text to view abstract

Thesis (Ph.D.)--University of the Witwatersrand, Faculty of Law, 1983.