Vox Populi? Vox Humbug! - Rising Tension between the South African Executive and Judiciary Considered in Historical Context: Part Two

  Part One of this article traced rising tensions between the South African executive and the judiciary on the question of the separation of powers. This situation was then contrasted and compared with a clash which took place in the 17th century between King James I of England and Chief Justice Edward Coke. In Part Two of this article attention is focused on two specific cases which arose out of the clash between James and Coke - Prohibitions Del Roy and The Case of Proclamations. The article then turns to a discussion of the lessons which can be drawn from these cases. The arguments which were raised in the cases are contrasted and compared with more contemporary arguments advanced in the context of the present conflict between the South African executive and the judiciary. The views of Ronald Dworkin comparing 'majoritarian' and 'constitutional' conceptions of democracy are examined in the context of this debate. Tentative conclusions are then drawn and warnings issued of the negative consequences for South Africa if the potential conflict between the executive and the judiciary is not properly resolved.    &nbsp

A Disgrace to the Master Race: Colonial Discourse Surrounding the Incarceration of "European" Prisoners within the Colony of Natal towards the End of the Nineteenth and Beginning of the Twentieth Centuries

The discourse surrounding the punishment of offenders within a society reveals much about the particular ideological underpinnings of power within that society. Penal discourse within colonial societies is particularly interesting, in that it traces the specific contours of the racist ideologies which characterise those societies. This article is focused upon penal discourse within the Colony of Natal towards the end of the nineteenth and beginning of the twentieth centuries. Within the colony at this time, the race of an offender was becoming increasingly important in determining the type of punishment, treatment and training considered appropriate for that offender. This article is focused - in particular - upon the discourse surrounding the punishment of ‘European’ offenders in colonial Natal. It is submitted that the punishment of these offenders raised all sorts of ideological problems for the colonists, since the offenders in question were members of the white 'master race'. The following central themes within the colonial penal discourse of the time are discussed: first, the role that 'shame' and 'degradation' were considered to play in the punishment of white - but not black - prisoners; second, the perceived need to train white - but not black - prisoners in skilled work, to enable white prisoners to find employment upon leaving prison; and, third, the perceived need to keep white - but not black - prisoners out of the public gaze, in particular avoiding situations in which white prisoners could be seen being punished alongside black prisoners and subject to the control of black prison guards. Examining the precise contours of the penal ideology which underpinned the punishment of offenders in colonial Natal, may be useful in understanding certain of the foundations of racist penal thinking during subsequent periods of South African history, including the notorious apartheid era.   &nbsp

Penal discourse and imprisonment in South Africa : an examination of the evolving discourse surrounding imprisonment in South Africa, from the colonial period to the post-apartheid era, and it's effects on the human rights of prisoners.

Ph. D. University of KwaZulu-Natal, Durban 2015.The focus of this thesis is on the evolving public discourse surrounding imprisonment in South Africa from the colonial period to the post-apartheid era, and its effects on the human rights of prisoners. Although the punishment of imprisonment has dominated the penal landscape for around 200 years it is clear that, in terms of its stated aims of reducing crime and rehabilitating criminals, it has proven to be an abject failure. The influential philosopher Michel Foucault maintains that the failure of this form of punishment was apparent from the very beginning of its rise to prominence in the Nineteenth Century. It turned out, however, that the very failure of the prison system – its propensity to "create" a class of criminals separated from the rest of society – was useful in the context of developing capitalist industrial societies. As a result, this form of punishment did not wither away, but continued in existence despite repeated crises and widespread public acknowledgement of its failure to reform criminals or to reduce crime. The above may be true of the manner in which imprisonment, as a form of punishment, evolved in France and in the developed world in general, but the question at the heart of this thesis is whether or not Foucault's theory holds true in the South African context. In other words, by carefully tracing the public discourse surrounding imprisonment in South Africa from the colonial to the post-apartheid periods, a primary aim of this thesis is to establish whether the evolution of imprisonment in South Africa follows the same pattern as that outlined by Foucault – a pattern of apparent "failure" from the very start, with regular and repeated, but ultimately futile, attempts at "reform". By showing that this is, in fact, the case – that the South African prison system has been lurching from crisis to crisis since its inception, with the same "solutions" being suggested from one decade to the next – this thesis suggests that the "problem" with imprisonment in this country lies at a structural and ideological level. If this thesis is correct, "reforming" the South African penal system will not be possible without completely rethinking imprisonment as a form of punishment at an ideological level. Precisely what such a rethinking might entail, this thesis leaves open for future scholarship. An important secondary aim of this thesis is to trace the evolution of penal ideology in the South African context. In other words, it sets out to trace the development of the perceptions and ideas which have underpinned the punishment of imprisonment in this country over its history. Starting in the colonial period and focusing in particular on colonial Natal, these ideas may be described as the articulation of the penal theories and assumptions of an industrialised metropolitan political economy – Great Britain – and those of a rural colonial political economy – the Colony of Natal. A unique ideology of racially defined punishment emerges strongly towards the end of the colonial period. Moving to the apartheid period, through a careful analysis of various themes which arise in the public discourse surrounding imprisonment, the thesis traces the penal ideology operating within a society rigidly segregated according to race. Finally, once again through a careful analysis of the public discourse surrounding imprisonment, the ideas and perceptions which underpin punishment within post-apartheid South Africa, are examined. The thesis thus provides a unique overview of the manner in which penal ideology has developed within a uniquely African setting, by tracing the evolution of a set of ideas reflected in public discourse. A tertiary aim of this thesis is to trace the manner in which the role played by imprisonment within the social, political and economic structure of the country as a whole, has changed over time – together with social, political and economic developments. The use of imprisonment as a mechanism of social control during various periods – particularly the colonial and apartheid periods – as well as the constant problems which arose within the South African penal system because of this, is particularly important. Finally, as part of a detailed analysis of the public discourse surrounding imprisonment in South Africa during specific periods in the colonial, apartheid and post-apartheid eras, this thesis examines selected themes and sub-themes which emerged at various times. Taken together, these themes and sub-themes provide a series of "snapshots" of what it was like to be imprisoned in South Africa at particular times in the country's history. A constant focus throughout the thesis is the manner in which the human rights of South African prisoners have been abused from the time that prisons rose to prominence in this country almost two centuries ago – to the present day. This thesis strives not to lose sight of the human suffering which has characterised imprisonment in South Africa from colonial times to the present

Vox Populi? Vox Humbug! - Rising Tension between the South African Executive and Judiciary Considered in Historical Context: Part One

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary. Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated. Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.     &nbsp

Including Children's Views in Divorce Mediation: A Comparative Analysis and Recommendations or Kenya

It is important that the views of children be considered during the process of their parents' divorce. Parental divorce mediation informed by the needs of children is more likely to produce better outcomes. The ways in which divorce mediators in South Africa, Australia and Kenya consider views of the children of marriages in the process of dissolution are compared. The extent to which these three countries have domesticated and implemented relevant international law and policies is compared. Recommendations are provided for Kenya, where empirical research was undertaken to establish the practices and attitudes of Kenyan divorce mediators. The outcome of this empirical research indicates that – prior to mediating between their parents – most of Kenya's divorce mediators fail to elicit the views and wishes of the children who will be affected by the divorce. Proposals are put forward on how this may be rectified. In formulating these proposals, practices in South Africa and Australia are examined for the purposes of comparative analysis. The recommendations for Kenya include the formulation of appropriate laws and policies; the establishment of cost-effective mechanisms for hearing the voices of children prior to their parents' divorce mediation; and the education of the general public on the importance of considering the views and wishes of children when their parents are divorcing

SOUTH AFRICA’S QUIXOTIC HERO AND HIS NOBLE QUEST – CONSTITUTIONAL COURT JUSTICE ALBIE SACHS AND THE DREAM OF A RAINBOW NATION

Albie Sachs has always been clear-sighted in his vision of a rainbow nation at the southern tip of Africa, characterised by tolerance and mutual respect among and between its citizens. Using the well-known story of Don Quixote de la Mancha as a metaphor, this article sets out to chart the “quest” undertaken by Albie Sachs in pursuit of his noble dream. It traces a number of important personal and political transitions that he has made along the way, from his initial emphasis on solidarity and revolutionary struggle, to his later focus on issues of diversity and tolerance. The article touches briefly on aspects of Albie Sachs’s inspiring dignity jurisprudence which it applauds, but then poses the question as to whether or not his views represent real hope to a country which, a decade and a half after the end of apartheid, remains fractured and traumatized.&nbsp

THE PROPOSED LEGALIZATION OF PROSTITUTION IN SOUTH AFRICA – FRAMING THE DEBATE FROM A LIBERAL PERSPECTIVE

The debates surrounding the issue of whether or not prostitution or sex work ought to be legal or illegal have a long and convoluted history, both in South Africa and abroad. This article seeks to provide greater clarity and focus to current debates on this complex issue, in particular from a liberal perspective. By examining certain of the main issues at stake for those committed to the broad tenets of liberal ideology, the article hopes to bring at least some measure of clarity and focus to a contentious set of theoretical and empirical questions. It is argued that, from a liberal perspective, to interfere with the freedom of each South African to make his or her own moral choices is to interfere with the very foundation of South Africa’s hard-won constitutional democracy. In order to convince those committed to truly liberal principles of the need for the criminal law to prohibit sex work, it must be shown that it causes either “harm” or “offence” to others. Liberals will accept neither the principle of “legal moralism” nor that of “legal paternalism” as legitimate reasons to criminalize sex work

BETWEEN THE DEVIL AND THE DEEP BLUE SEA – THE SPECTRE OF CRIME AND PRISON OVERCROWDING IN POSTAPARTHEID SOUTH AFRICA

Chronic overcrowding has plagued the South African penal system since the advent of democracy in 1994. This has resulted in the large-scale gross violation of the basic human rights of large numbers of prisoners. After examining certain historical examples of overcrowding in the prisons of Africa generally, the article focuses on the history of chronic overcrowding in the prisons of South Africa during the post-apartheid period. The hard choices facing the South African people and government in relation to this issue are then examined

THE END OF THE HONEYMOON: PENAL DISCOURSE AND THE HUMAN RIGHTS OF PRISONERS IN THE AFTERMATH OF SOUTH AFRICA’S SECOND DEMOCRATIC ELECTION − PART 1

The years immediately following South Africa’s second democratic election, held in June 1999, were significant in that they marked the end of the “honeymoon” period which followed the country’s transition from apartheid to democracy in 1994. This article focuses on the public discourse surrounding imprisonment in South Africa during this important “post-honeymoon” period. The article traces the continued systematic violation of the basic human rights of many of those confined in South African prisons throughout the period. Part One of the article deals with the many public debates surrounding chronic prison overcrowding and its effects, whereas Part Two deals with a host of evils which beset the South African penal system at this time, including very poor conditions of detention, high levels of gang activity, the spread of HIV/AIDS, the escape of dangerous criminals from different prisons in the country, and instances of corruption and other criminal activity amongst prisoners and staff

CULTURAL IDENTITY, TRADITION, AND THE RITUAL KILLING OF BULLS – A NOTE ON A RECENT DECISION OF THE FRENCH CONSTITUTIONAL COUNCIL ON THE LEGALITY OF BULLFIGHTING

In a recent two-part article in this journal, the authors of this note analysed the controversy surrounding the ritual bull-killing which takes place during the Ukweshwama “first fruits” ceremony held each year in northern KwaZulu-Natal, South Africa. While much of the Ukweshwama ceremony is uncontroversial, the ritual killing of a bull by young Zulu warriors with their bare hands attracted strong opposition from certain animal-rights groups, which resulted in legal action and public controversy. The authors attempted to disentangle the different legal, historical, political and philosophical strands which combined to make up a complex story about the place of ancient rituals in the modern world, particularly those involving animal sacrifice. They also attempted to situate the controversy around the Ukweshwama bull-killing ritual within a contemporary global context, by comparing and contrasting the Zulu bull-killing ceremony on the one hand, and Spanish bullfighting on the other. The purpose of the present note is to report on recent developments in what is a global debate on the place of ancient rituals which involve the ritual killing of animals, within modern constitutional democracies. In particular, this note will examine and discuss the outcome of a recent legal challenge brought before the Constitutional Council of the Republic of France by certain animal-welfare groups in that country. The challenge was directed at bringing an end to a legal exception which operates in certain parts of the country – that is, those with an uninterrupted local tradition of bullfighting – excluding bullfighting from the provisions of animal-welfare legislation. The legal, political and cultural issues which arise as a result of this legal challenge are of relevance to those in South Africa who are concerned, one way or the other, about the future of the annual Ukweshwama bull-killing ritual in KwaZulu-Natal. Like it or not, although the bull-killing rituals which take place in the South of France and in KwaZulu-Natal South Africa are very different, the similarities between the rituals and their impact on broader society (legally, politically and culturally), are such that they cannot be ignored. The authors make a similar point in relation to the links between Spanish bullfighting and the Ukweshwama bull-killing ritual