Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.     

Access to courts by vulnerable persons in relation to hydraulic fracturing in South Africa

Hydraulic fracturing is in a planning stage in South Africa. Notices have been issued regarding pending administrative decision concerning applications for exploration rights to explore for natural (shale) gas largely in the Karoo region. Concerns, which are similar to those expressed in other jurisdictions regarding the process are also being raised locally. These concerns are exacerbated considering that a significant part of the population of the Karoo have limited understanding of the issues associated with hydraulic fracturing. Many of them are also poor, which may hinder their effective access to justice. The aim of this article is to examine the constitutional provision pertaining to the right of access to courts in South Africa vis-à-vis a theoretical underpinning of the right with a view to determining whether or not the provision can effectively be applied to guarantee the access of poor and vulnerable persons to the courts in the event of any potential violation of their rights by hydraulic fracturing. Recommendations are made in the conclusion, to reinforce the ability of poor and vulnerable persons to enforce the right of access to courts in the event that hydraulic fracturing becomes a reality in South Africa.     

Access to justice and the need for a holistic approach to the delivery of legal aid services in developing countries: Lessons from South Africa

Jindal Global Law Review - Legal Aid South Africa, in its previous incarnation as the Legal Aid Board, was established in 1969, and began operating in 1971. During the apartheid era the scheme had...     

DNA evidence in South Africa: Lessons learned to date

A trend was noted over the past 15 years in the South African courts. This trend has a multi-factorial origin and highlights the problems faced in the use of forensic science evidence in court. Although there have been improvements on how DNA evidence is gathered and presented in court, due to the fact that certain cases have been contested at the DNA evidence level, multiple issues remain that have not yet been addressed when DNA evidence is submitted to court. These issues include: accreditation, regulation of the forensic science profession, continued education, training of court officials, quality assurance, biased testimony, lack of transparency with regard to processes and procedures followed in the forensic community, incorrect interpretation of DNA evidence, lack of scientific knowledge (including the scientific method) by DNA experts, awareness by the legal profession and an over emphasis on the prosecuting perspective. These same aspects continue to plague current cases. Despite the above, the window of opportunity to address the above has not yet passed. However, it will take continuous and concerted efforts from the scientific and legal professions to bring about the appropriate change to facilitate justice for all in South Africa.     

South Africa: damages awarded to woman infected by husband

In mid-2001, the High Court of South Africa issued its judgment in Patricio v Patricio, a civil case in which a woman sued her HIV-positive husband for infecting her with HIV.     

South Africa: defiance campaign continues

The Treatment Action Campaign (TAC) has continued its "defiance campaign against patent abuse and AIDS profiteering." In partnership with Médecins Sans Frontières (Doctors Without Borders), and with the support of Oxfam and the Council of South African Trade Unions (COSATU), on 28 January 2002 three TAC members returned to South Africa from Brazil carrying generic versions of the antiretroviral drugs zidovudine (AZT), lamivudine (3TC), and nevirapine (NVP). Some of the imported capsules contain a combination of AZT and 3TC.     

Adapting to Changing Legal Frameworks: Mozambican Refugees in South Africa

This paper argues that legal frameworks to manage immigrationand refugee rights need to be understood from below, namely,how they are interpreted and used locally by the immigrantsaffected and by the host communities, in their specific historicalcontext. Using the case of Mozambican refugees in South Africa(1985–2006), the paper outlines why many of the policiestargeted at or affecting this group of immigrants have had counterproductiveeffects (from the perspective of policy makers) because of thedisjuncture between the goals and assumptions of the legal frameworkand the reality experienced and desired by the refugees. Thesituation of Mozambican refugees in South Africa over the pasttwenty years has been shaped by a radically changing legal context.These changes are charted and matched with how Mozambican refugees,especially those settled in the rural border areas, have adaptedto, made use of and subverted the various legal constraintsand opportunities provided by the South African state and itslocal representatives.     

南非:《劳动法》照不进的地心深处

过去,解雇一位雇员很容易。而现在,雇主必须先给雇员一次当面警告,然后是两次书面警告,随之而来的是雇员在听证会上对自己的行为做辩护,全部通过后,雇员才能被解雇。此后,雇员仍然可以将雇主诉上劳动法庭,并为被解雇寻求补偿。(图/东方IC)     

South Africa: constitutional court rejects constitutional challenge to law criminalizing prostitution

On 9 October 2002, a majority of South Africa's Constitutional Court dismissed appeals from convictions for prostitution and keeping a brothel, rejecting arguments that the law was unconstitutional. However, the minority decision, endorsed by five of eleven judges, found that the provision that made the sex worker but not the client guilty of a criminal offence was discriminatory and should be struck down.     

Compulsory Licensing and Access to Medicines in Post Doha Era: What Hope for Africa?

Netherlands International Law Review -     

Joining the ranks: South Africa on track to adopting DNA legislation

South Africa has recently been at the epicentre of a spate of horrific violence, with reports of rape and murder making headlines almost daily. Disturbingly regarded as the ‘rape capital of the world’, South Africa has never before required a more urgent need for the effective use of DNA profiling in aiding investigations as now. Although South Africa has conducted DNA profiling since 1998, there has been no supporting legislative framework for its use thus far. The ‘DNA Bill’ has recently been passed by Parliament and we reflect on the key events that have brought us to this milestone.The DNA Project, a non-profit organisation, has long been lobbying to pass such legislation, as well as providing free DNA awareness workshops to a variety of first-on-the-crime-scene personnel. As with all new DNA legislation, there arises an essential need to intensify training and awareness around the DNA process, from the crime scene to the court room, in order for the value of DNA evidence be realised. Enacting legislation is only a step on a journey to effectively utilise DNA profiling resources in a more intelligent manner and it is necessary that significant investment be continually made towards the improvement and advancement of this exceptional technology and tool.     

South Africa: highest court orders government to provide antiretrovirals to prevent mother-to-child transmission

On 5 July 2002, South African treatment activists won a significant victory when the Constitutional Court ordered the South African government to make the antiretroviral drug nevirapine available in public hospitals and clinics for the purposes of preventing mother-to-child transmission of HIV. The Court also ruled the government has a constitutional obligation to implement a program to realize the right of pregnant women and their newborn children to access health services to prevent transmission.     

Law in and Legitimacy South Africa

Israel has since 1967 administered the West Bank and Gaza Strip through highly legalistic and strongly repressive military governments. Has advocacy in Israeli courts on behalf of Palestinian residents of the West Bank and Gaza Ship has kgitimaed, and thus helped to perpetuate, ongoing Israeli military occupation of those regions? By examining legitimation in lawyering under lsraeli occupation, insight can be gained into the factors and their relative weights that lawyers facing harsh or repressive regimes must consider in balancing the costs and benefits of litigation to serve a social or political opposition movement. The author concludes that the benefits outweigh the legitimating effects of lawyers’work and that, on balance, Palestinians’election to seek representation in Israeli courts, and lawyers’choice to assist them, has been justified.     

Transferring Health Technology to South Africa: The Importance of Traditional African Culture

The transfer of new health technology to South Africa is occurring despite the fact that North American and European health care planners and entrepreneurs have a very limited understanding of traditional Black South African cultures which condition the health-related behaviors of the majority of the population. Consequently, relatively few people of African descent in this very diverse nation are, at least initially, benefiting from the new imported medical technology. This study gives an overview of traditional Black medicine in South Africa and, through the presentation of several case studies, discusses its implications for the societal adoption of new health technology received from the United States and other industrialized nations. The example of the successful application of cervical cancer exams in rural and urban clinics of the Eastern Cape is analyzed and institutional mechanisms that support successful transfer are identified.