uBuntu, Pluralism and the Responsibility of Legal Academics to the New South Africa

Neo-liberalism often reduces pluralism to a social fact based on the collapse of the big ideals that once claimed to stand in for the ideal of humanity. Tolerance of inevitable value diversity is all that can be offered by the rationalized modern western state. This understanding of pluralism is completely inadequate in the post colony. Ernst Cassirer offers a philosophical understanding of symbolic plurality that allows us to respect divergent symbolic forms, including myth and religion. This understanding of pluralism opens the space for respect for the customary law and the great indigenous ideals such as uBuntu which has often been denigrated as mythical and thus outdated or, worse yet, not law at all. This denigration is inseparable from colonial violence, and demands a process of transculturation as integral to this struggle to transform the new South Africa into a society that lives up to the Constitution’s call for the respect of all of its citizens. This respect can only be done if there are serious economic reforms and a challenge to the hegemonic neo-liberal capitalism.

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.     

Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.     

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.     

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.     

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.     

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.     

南非律师制度初探

南非律师制度经历了从种族歧视到黑人与白人律师平等发展的变迁。由于先后受到荷兰与英国的殖民统治,南非律师制度具有法系混合特征。在迈向法制现代化的进程中,律师制度的人权保障功能日益受到重视,尤其是法律援助制度建设已引起世界关注。     

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.