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Centre for Foreign and Comparative Law

volume 39(3) november 2006

‘... From frost and foreign wind’ – some international aspects of Australian family law by Frank Bates

The paper begins with a general comment on the failure of Australian courts in the area of private international law to come to grips with matters of policy and the effect of this failure. It then moves to discuss the issue of child abduction, first, in relation to the Hague Convention on Civil Aspects of International Child Abduction and recent cases relevant to it. Quite apart from their Australian context, these cases tend to demonstrate that the convention is by no means an unflawed document, though, at the same time, some of the decisions might go some way towards alleviating the concerns which have been expressed regarding the utility and fairness of the convention. Yet there are jurisdictions which are not parties to the convention with which Australia deals and particular problems have arisen because of the lack of Central Authorities in those jurisdictions. Apart from child abduction, difficulties have arisen in relation to the application of the forum non conveniens doctrine and, more recently, the use of stays and anti-suit injunctions. The cases discussed in the article do not afford any global conclusion and a greater awareness of policy and its application might give rise to greater certainty, predictability and fairness.

Environmental law reform in Swaziland by Elmene Bray

Swaziland is a developing country on the threshold of far-reaching constitutional change. Over the last few years it has made considerable progress in the development of environmental law and is committed to playing a meaningful role in international and regional environmental management. It has adopted the international concept of sustainable development as a key principle in national environmental law, and promulgated framework legislation that endorses international and regional principles of integrated environmental management, public participation and transparent and accountable administration of environmental affairs. Despite advanced environmental legislation, the realities reflect that much still has to be done in terms of the implementation of environmental legislation and the cultivation of public participation and environmental consciousness. Financial and human resources are also critical for the proper administration and enforcement of environmental law in Swaziland.

Judiciaries in the spotlight by Gretchen Carpenter

The judiciary is under pressure from both the public and from government. Judges are no longer treated with the same veneration as in the past. The situation in South Africa and Australia display parallels in regard to the independence of the judiciary and what this entails; the importance of public confidence in the judicial system and the administration of justice; the accountability of judges; assessment of judicial performance; the issue of judicial misconduct which falls short of being impeachable; judicial training; and the process and substance of judicial appointments. The author investigates the parallels and supports a re-examination of long-held assumptions about the best way to administer justice. If judicial independence and public confidence in the judicial system are to be maintained, it is incumbent on both government and the members of the judiciary to nurture the independence of the judiciary and public confidence.

Deciphering the language of mediatory intervention in South Africa by John Faris

Mediation has been introduced progressively into the South African legal system over the past two decades. A cause of great concern is the inconsistent use of the word ‘mediation’ in private practice and especially in the statutory provisions. The problem is propounded when the legislature uses the words ‘mediation’ and ‘conciliation’ in the same or in different statutory provisions. The use of consistent terminology is important as the basis for the training and accreditation of practitioners, ensuring compliance with standards of practice and possibly most important of all, as a means of educating the parties about the process in which they will be involved. In order to understand the various dimensions of the problem, the nature and scope of mediatory intervention is examined, with particular attention being given to the facilitative and evaluative models of mediation. With this as background, tentative recommendations are made in regard to the development of a definitive system of mediation language.

Some thoughts on current developments relating to class actions in South African law as viewed against leading foreign jurisdictions by Estelle Hurter

The term "class action" is not always used in a consistent manner, but is often incorrectly used to refer to multi-party litigation in general which leads to confusion. The class action was introduced into South African law by section 38(c) of the Constitution to address the infringement of a right in the Bill of Rights. This article explains the characteristics of the American style class action and its function within multi-party litigation. It also disputes the notion that the Supreme Court of Appeal in a recent decision recognised a general class action in South African law and it outlines the steps taken by our courts to develop the South African class action in its present form. Finally, it calls for comprehensive legislation not only to provide for a general class action, but to ensure the orderly development of a truly South African class action.

State intervention and child protection measures in Scotland – lessons for South Africa by JM Kruger

In terms of the Children (Scotland) Act 1995, Scottish local authorities have certain duties in respect of children they are ‘looking after’. First, certain children are looked after if local authorities are providing them with accommodation. This non-compulsory measure is designed for cases where parental care has failed, and there is no one else willing and able to look after the child. Secondly, children who are the subjects of supervision requirements are looked after by local authorities. Children in need of compulsory measures of supervision are dealt with by a lay tribunal known as a children’s hearing. The children’s hearing has to determine, with reference to certain specified grounds, whether compulsory measures of supervision may be necessary in respect of a child, and which measures are appropriate. Thirdly, children who are the subjects of ‘parental responsibi-lities orders’ are looked after by local authorities. In this instance, parental rights and responsibilities in respect of the child are transferred to the local authority, and the parent is barred from exercising any of these rights and responsibilities. The purpose of this transfer is a protective one. Scottish child protection measures are non-adversarial, involve the family, and are characterised by a high level of participation and representation for children. South African child law can benefit from similar lay tribunals, and a higher level of child participation, both of which have to a limited extent been achieved by the new Children’s Act 38 of 2005.

Affirmative action and non-discrimination: South African law evaluated against international law by Marié McGregor

This article evaluates South African law regarding the relationship between affirmative action and non-discrimination against international law. The United Nations (UN) holds that grounds of distinction introduced in the framework of an affirmative action policy should be ’relevant’ to the right to equality in order to be ‘non-discriminatory’. While the South African Constitution authorises affirmative action in broad terms for persons or categories of persons disadvantaged by unfair discrimination, the Employment Equity Act (EEA) focusses on race, sex and disability for beneficiaries of affirmative action. The author argues that there is a sufficient connection between these grounds and the right to equality and that the grounds are thus not contrary to the non-discrimination principle laid down by international law. The ground of citizenship as mooted by the Auf der Heyde case and recently formalised by amended regulations to the EEA, is argued to be similarly relevant in the South African context, but not in an unqualified manner

The uncooperative victim and the admissibility of evidence: some pointers from the USA by Bobby Naudé

Domestic violence crimes are normally met with a laissez-faire attitude by the prosecution. Because the victim is usually reluctant to cooperate, it is said that prosecution would be a waste of time. This attitude is reinforced by the view that domestic violence is often seen as a private issue that is inappropriate for state intervention. This approach needs to be reconsidered, since not only does it enable perpetrators of domestic violence to exert an enormous amount of control over the criminal justice process, but it also ignores those situations where prosecution would be the only acceptable way to proceed. In such situations, a more aggressive prosecution attitude and strategy, one that pursues a conviction by all possible means, must be adopted. Hearsay statements about the violence are a useful starting point.

Proportionality review – the battle between community standards and English domestic law.by H van Coller

In the European Community System, proportionality is an important general principle of Law and is applied by both the European Court of Justice and the European Court of Human Rights. These courts will exercise restraint in reviewing measures involving complex economic assessment and policies, legislative measures the breach of less fundamental provisions such as directives. In general, a wide margin of discretion will be granted to EC institutions in this regard. However, review by the courts will be quite intense in the field of law enforcement decisions and the breach of fundamental rights; depending on the nature of the interest in question. The English common law recognises the principle of proportionality in the field of constitutional rights and domestic courts use proportionality principles when dealing with European Community law and fundamental rights under the Human Rights Act. In both the EC and domestic application of proportionality, variable intensity of review and a lot of flexibility exist. As a separate ground of review, however, the English courts are reluctant to recognise proportionality for fear of lowering the threshold of judicial intervention and considering the merits of the decision. Despite considerable argument in favour of the application, the courts reject this view. They are clear on the fact that whatever the opinion may be, it is for the House of Lords to make such a decision. The development towards a common administrative law in Europe, in the form of spill-over of Community instruments and principles to matters of purely internal law, can offer a solution to the recognition of the principle of proportionality also in purely domestic matters.