South Africa\u27s Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan\u27s President Omar Al Bashir

President Al Bashir has avoided the International Criminal Court (“ICC”) for seven years and has been able to travel to both states that are party to the Rome Statute and states that are not without any consequences. The existence of customary international law immunities makes it difficult for the ICC to be able to discharge its duties without the cooperation of states parties. The silence of the Security Council and its failure to clarify Security Council Resolution 1593 (2005) on whether the resolution indeed removes Sudan’s immunities in order for President Al Bashir to be arrested and surrendered to the ICC equally makes the ICC’s job difficult. This article examines whether there is a justification for South Africa’s failure to abide by its obligations under the Rome Statute when it did not secure and arrest President Al Bashir. This will be done against the backdrop of the ICC decisions on the obligations of states parties to the Rome Statute to cooperate. The article also analyzes the South African High Court and the Supreme Court of Appeal judgments with regard to South Africa’s domestic and international obligations

South Africa and the “othering” of the “non-euro-Christian” religions

No abstract available.https://www.cambridge.org/core/journals/american-journal-of-international-lawPublic LawSDG-16:Peace,justice and strong institution

Revisiting personal immunities for incumbent foreign heads of state in South Africa in light of the Grace Mugabe decision

In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa’s relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa’s position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes.A draft of this article was presented at the Law and Society Association annual meeting held as a virtual conference on 27-31 May 2020. I am grateful for the questions and comments from the participants. I also am grateful to Mtende Mhango for his willingness to listen and at times for re-directing my half-baked arguments during the earlier stages of drafting this article. Usual disclaimers apply.http://www.ahrlj.up.ac.zaam2022Jurisprudenc

Does the board of a pension fund in South Africa perform a public function or exercise public power when determining death claims under section 37C of the Pension Funds Act?

This article examines whether a board of a pension fund performs a public function or exercises public power when it determines death claims under section 37C of the Pension Funds Act (PFA). The article considers recent jurisprudence around this question by looking at cases that deal with the application of administrative law to private companies generally and cases dealing with pension fund and death benefits specifically. The article argues that since pension funds perform a public function when deciding on death claims under section 37C of the PFA, administrative law principles apply to control how those decisions are made.http://www.dejure.up.ac.zaam2022Public La

The powers of the South African public protector : a note on economic freedom fighters v speaker of the national assembly

The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.https://brill.com/view/journals/ajls/ajls-overview.xmlhj2022Jurisprudenc

Reflecting on Former Chief Justice Ngcobo’s Approach to Gender Equality: Revisiting the Jordan and Volks Judgments

More than a decade ago, Ngcobo CJ upset gender scholars and activists in two judgments for failing consider the interface between social context and legal rules in relation to women as sex workers, in one instance, and those who are in unmarried permanent life partnerships, in another. These two judgments were the topics of much scholarly work. Further, there have been recent legal developments in relation to these two issues. This article examines these criticisms with a view to reflecting on Ngcobo CJ’s jurisprudence on gender equality in relation to Jordan and Volks. The aim is not to determine the validity or invalidity of these claims, but to highlight the issues raised in order to discuss Ngcobo CJ’s legacy in relation to these two judgments. The latest developments since the two cases will also be examined. The article emphasises the significant role of the Legislature and argues that the Legislature has a constitutional duty to protect the rights enshrined in the Bill of Rights: the time has arrived for it legislate on these issues