Faculty of Law
Department of Public Law
Selected Highlights from Research Findings
This research analyses the evolution of the mandate for civil administration in Kosovo, provided in United Nations Security Council Resolution 1244 (1999). It illustrates the difficulties that arise in the face of an open-ended mandate for civil administration under Chapter VII of the charter as a result of which any formal amendment necessitated by realities on the ground requires a subsequent Chapter VII resolution. It concludes that although the Security Council’s endorsement of the mandate of civil administration by the European Union Rule of Law Mission (EULEX) in Kosovo under overall United Nations control in November 2008 provided an ex-post facto legal basis for the mandate, its long-term legality is uncertain, due to political realities in Kosovo itself.
Contact person: Prof E De Wet.
The article exposes the deficient human rights protection currently provided in international law itself towards individuals directly affected by United Nations Security Council resolutions. It does so by analysing the Kadi decisions of the Court of First Instance of the European Communities in 2005, as well as the subsequent appeals decision by the European Court of Justice (ECJ) in 2008. It concludes that the ECJ’s decision weakened the notion of a universal value system to which the United Nations Security Council is also subjected.
Contact person: Prof E De Wet.
This research explored the nature of the South African health system in the context of the regulatory legal framework. It was found that the system consists of both the public and private health sectors. Although the private health sector works well, the public health system is inadequate and fragmented in principle and does not meet the imperatives of the constitutional right to health, mainly for lack of resources and other economic concerns.
Contact person: Prof PA Carstens.
The research discusses the constitutional provisions that relate to the interpretation and application of the use of the official languages for the purpose of the official recording of judicial proceedings in South African courts. This is followed by a critique of the most prominent judgments in which the question was dealt with. The discussion shows that the argumentation in some of these judgments reveals a dreadful trend of the judicial flouting of clear constitutional provisions, on the skimpiest of grounds, thus reneging on the very responsibility of these courts as the guardians of the supreme constitution.
Contact person: Prof JJ Malan.
Most people in South Africa, including many lawyers and legal practitioners, are unaware of the important public law role that a Central Bank plays in most constitutional democracies and in particular financial environments. Recent global and regional events have highlighted the lack of insight in the role of a modern central bank on the one hand, and its impact in securing stability in local economies and facilitating economic growth and fiscal stability on the other. This particular research was thus aimed at emphasising, explaining and comparing the various statutory (national laws and the Constitution) provisions relating to the South African Reserve (Central) Bank (SARB). Not only were the various powers and functions of the SARB investigated, but many of the important advantages of such an institution were explained, especially in the managing of consumer bankruptcies and corporate failures. The research furthermore covered aspects of the historical development of the SARB, statutory foundations, including powers and functions, and a brief comparative section with other major central banks in the world. It is finally submitted that the research is of value for both lawyers and economic advisors, and should act as a stimulus for further academic research and debate on this sometimes neglected field of public law. In the final analysis, the research confirmed that the public law principles of Rule of Law, legality and good governance also apply in the sphere of national monetary and fiscal policy.
Contact person: Prof CJ Botha.
Most people in South Africa, including many lawyers and legal practitioners, are unaware of the important public law role that a Central Bank plays in most constitutional democracies and in particular financial environments. Recent global and regional events have highlighted the lack of insight in the role of a modern central bank on the one hand, and its impact in securing stability in local economies and facilitating economic growth and fiscal stability on the other. This particular research was thus aimed at emphasising, explaining and comparing the various statutory (national laws and the Constitution) provisions relating to the South African Reserve (Central) Bank (SARB). Not only were the various powers and functions of the SARB investigated, but many of the important advantages of such an institution were explained, especially in the managing of consumer bankruptcies and corporate failures. The research furthermore covered aspects of the historical development of the SARB, statutory foundations, including powers and functions, and a brief comparative section with other major central banks in the world. It is finally submitted that the research is of value for both lawyers and economic advisors, and should act as a stimulus for further academic research and debate on this sometimes neglected field of public law. In the final analysis, the research confirmed that the public law principles of Rule of Law, legality and good governance also apply in the sphere of national monetary and fiscal policy.
Contact person: Prof B Bekink.
Acts of sexual violence have long been trivialised in international law. The rape camps during World War II, during the Bosnia-Herzegovina conflict and the Rwandan genocide shocked the international community into focusing on the status of sexual violence as international crimes. The ad hoc tribunals of the former Yugoslavia and Rwanda established presidential authority during the last decades in recognising and prosecuting acts of sexual violence as genocide, crimes against humanity and war crimes. The contribution examines international instruments and important judgments that illustrate the circumstances in which acts of sexual violence may constitute international crimes. The conclusion reached is that the time has come to recognise the fact that acts of sexual violence can constitute the crimes of genocide, crimes against humanity and war crimes.
Contact person: Prof J Le Roux-Bouwer.
|
