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Centre for Foreign and Comparative Law

volume 36(1) 2003 abstracts

The rights of child witnesses versus the accused's right to confrontation: a comparative perspective by Fawzia Cassim
Senior Lecturer: Dept of Criminal and Procedural Law University of South Africa

The article examines the question of whether the rights of child victims of sexual assault take precedence over the confrontation rights of the accused. Protective measures for child victims in South Africa and in foreign systems, such as the United States of America, Canada, United Kingdom and Australia are examined. The above examination reveals that the right to confrontation is not absolute. In exceptional circumstances, the accused's right to confrontation will yield to the greater public interest in protecting the rights of vulnerable child witnesses. The article recommends the development of alternative legal measures to achieve a balance between these competing interests.

The integration of substantive law interests and material justice in South African choice of law by Christa Roodt
Associate Professor: Department of Jurisprudence
University of South Africa

Justice plays an important part in setting boundaries for the application of choice of law rules. One of the classic dilemmas of the conflict of laws lies on the terrain of the true implications of the meaning of justice in international cases. `Conflicts justice' may be distinguished from `substantive (material) justice' for purposes of analysis, but it is also possible to regard the two concepts in competition with each other. Such harsh duality tempts scholars to attribute an absolute meaning to either form of justice, denying the other a say in certain areas of the conflict of laws. This contribution undertakes an investigation of facets of South African choice of law rules and approaches, first to establish what meaning ought to be given to the interests, values and standards that are important to substantive law, and second to determine whether, and the extent to which, material justice is being integrated into the multilateral basis structure of the subject-field. A greater understanding of the (inter)relationship between conflicts justice and substantive justice in the South African conflict of laws system will foster solutions to choice of law problems that are just and administrable.

Protecting constitutional values in Africa: a comparison of Botswana and Cameroon by Charles Manga Fombad
Associate Professor: Department of Law, University of Botswana

The protection of constitutional values through the control of the constitutionality of laws is without doubt one of the most central problems of modern constitutional law. This is a problem that is solved in different ways in different countries. This paper examines two countries, Botswana and Cameroon, who, because of their unique historical backgrounds and legal systems, provide two interesting contrasting approaches. The objective is not merely to observe and explain any similarities and differences but also to see, from the perspective of a comparative constitutionalist, what lessons can be learned. An examination of the sharply contrasting methods for controlling the constitutionality of laws followed by an evaluation of the differences and similarities of the approach adopted in the two countries provide many useful lessons. It can be argued that the Cameroonian Constitutional Council model by contrast with the Botswana approach of control through the ordinary courts has not worked, not necessarily because such models do not work but because, it is submitted, it was never designed to work. It is shown that the Constitutional Council model remains an aberration in the modern world. Our analysis does suggest some relationship between control of constitutionality, the political environment and the legal culture. There can hardly be an effective control against the violation of constitutional norms and values in a system designed on a French Civil Law culture that expresses and reproduces a low level of inter-institutional trust, particularly the obsessive fear of a `government of judges'. In all this lies a major dilemma; that of coping with legal systems and institutions inherited or copied from former colonial powers. Rights consciousness, which in the dominant Common law tradition in Botswana implies an individual's right to resort to the courts, is not highly developed in the dominant French Civil law tradition that prevails in Cameroon. With the exclusion of the judiciary from judicial review and the absence of any avenue for individual citizens or minorities to challenge the constitutionality of dubious laws, it is no surprise that unlike Botswana, street demonstrations have become the only avenue for Cameroonians to express their frustration and make their views heard.

Nevertheless, if it is accepted as legitimate to establish in the constitution some guarantees to protect citizens, it must also be accepted as legitimate to build into the constitution all the necessary institutional measures to ensure that these guarantees are effective; it is hardly reasonable to want the aim while avoiding the proper ways to get there. The main lesson from this comparative review is that if the values enshrined in a constitution are to be effectively enforced, then resort to courts of law, whether ordinary or special, which are accessible to all citizens, is unavoidable. On the other hand, any system of control of constitutionality of laws, which makes the control to depend on the goodwill of the lawmaker, is a sham.

Legal capacity of mentally ill persons in African societies by JMT Labuschagne (Professor in Private Law: University of Pretoria), JC Bekker (Part-time Lecturer: Department of Private Law, University of Pretoria) & CC Boonzaaier (Associate Professor: Department of Anthropology and Archeology, University of Pretoria)

Mental illness has in recent years become more topical than ever before. Scientists have made dramatic advances in the diagnosis, symptomatic treatment and cure of different forms of mental illness. At the same time, there is an increasing interest in dealing with a demented person from an ethical and legal point of view. The South African parliament has recently passed a new Health Care Act that approaches the condition from a highly sophisticated, scientific angle. At the same time the South African Law Commission has embarked on a research project aimed at rationalising the law on the legal capacity of adults with impaired mental capabilities. These developments prompted the authors to examine the way in which African societies regard and deal with the mentally insane. They point out that while some forms of mental deviation are caused by ancestral veneration, others can be ascribed to witchcraft or spirit possession. However, Africans clearly distinguish between the aforementioned conditions. Unfortunately non-scientific approaches may lead to serious misconceptions even the killing of those suspected of practising witchcraft. Then again, Africans are rather accommodating towards the mentally incompetent. It is said that they do not suffer alone, but that the corporate group suffers with them. The authors also deal with some typical customary law principles that have been developed to regulate certain legal issues arising from mental illness.

Justiciability and standing to challenge legislation in the Commonwealth: a tale of the traditionalist and judicial activist approaches by Chuks Okpaluba
Professor of Jurisprudence & Director: School of Law, University of the North

A court will not entertain an application for judicial review of legislation where the applicant does not disclose his/her right, interest or legitimate expectation on the subject matter of the complaint. This requirement of public adjudication is a vital component of the principle of justiciability. Originally developed as a principle of administrative law, this requirement has been imported into constitutional adjudication by the courts through their interpretation of the provisions of the constitution. This is the case in the United States, Australia, Nigeria and Zimbabwe where the law of standing remains in the traditionalist domain. Although the common law of standing has witnessed flashes of judicial activism in recent years owing to the sporadic judicial broadening of its base, it is the Canadian courts that have developed a systematic approach to the subject. They have developed four identifiable and guiding rules whereby citizens genuinely desirous of challenging the constitutionality of legislation, are granted standing in the discretion of the courts. The litigant can approach the courts in his/her own capacity, in the public interest or, where the party was brought to court on a criminal charge or civil suit, in defence of such charge or claim. This paper critically analyses the foregoing developments.