Corporal Punishment: Law Reform Lessons for Australia from South Africa and New Zealand

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.

Extraterritorial Use of Force against Non-State Actors: PS to Hague Academy Lectures

In July 2021, the author presented a Special Course for the Hague Academy of International Law Summer Courses on the Extraterritorial Use of Force against Non-State Actors. The course focused on two bases for the extraterritorial use of force against non-state actors, namely self-defence and intervention by invitation. The lectures came to a conclusion that may, at first glance, appear contradictory. With respect to the use of force in self-defence, the lectures adopted a restrictive (non-permissive) approach in which the use of force is not permitted save in narrowly construed exceptions. With respect to intervention by invitation, the lectures adopted a more permissive approach in which the use of force is generally permitted and prohibited only in narrowly construed exceptions. This article serves as post-script (PS), to explain the apparent contradiction. It concludes that the main reason for this apparent contradiction is the application of the fundamental principles of international law—sovereignty, territorial integrity and independence—which are consistent with intervention by invitation but are undermined by self-defence against non-state actors.

The Binding Nature of the Ombudsman’s Remedial Actions in Lesotho: Lessons from South Africa

The Constitution of Lesotho is regarded as liberal, with the separation of powers of the executive, judiciary and legislature, but provision was made for institutions to oversee the exercise of such powers. One of these is the Office of the Ombudsman, which has wide-ranging powers to investigate malpractice in public administration and to make recommendations for remedial action. These powers notwithstanding, there is a paucity of judicial precedent and scholarship on the binding nature of the remedial action of the Ombudsman. The main question is whether the remedial action of the Ombudsman is binding, which this article seeks to investigate and determine whether South African jurisprudence could be helpful in the case of Lesotho. The binding nature of the Public Protector’s remedial action under the Constitution of South Africa has been a subject of considerable judicial and scholarly engagement in recent times. While the subject is still yet to be settled in South Africa, it nevertheless has developed principles that could assist in both the interpretation and reform of the Ombudsman’s powers in Lesotho.

Individual Criminal Responsibility for the Financing of Entities Involved in Core Crimes: Aiding and Abetting

War crimes, crimes against humanity, genocide and the crime of aggression could not be perpetrated without those who finance them. This article examines the basis for criminal liability in international criminal law (ICL) for persons who finance entities that perpetrate core crimes. Despite the need for clear rules, neither international courts nor scholars agree upon (i) whether liability exists for individuals who finance entities that perpetrate core crimes; and (ii) if so, the circumstances under which such liability exists. This article argues that an individual who finances an entity that perpetrates a core crime should be held criminally liable under customary international criminal law as an aider and abettor. The objective of this article is to clarify the rules that would enable international courts and tribunals to identify the extent to which individual criminal liability attaches to the financing of core crimes, as well as the legal basis for such liability. By clarifying the criminal accountability of individuals who finance entities that perpetrate core crimes, this article also seeks to clarify the mental elements of the mode of liability of aiding and abetting.

Children’s Rights and COVID-19 Responses under the African Union: Recent Developments and Challenges

There is little doubt that children are at risk of being seriously affected by the socio-economic impact and the response measures to the COVID-19 pandemic that may inadvertently affect their rights, interests and well-being. UNICEF has declared that unless states act together, globally and regionally, to address this, it is possible that the pandemic will permanently cause damage to children and our shared future. The pandemic poses real challenges for children around the world, particularly the developing countries in Africa. Most African countries are already bedevilled by socio-economic frailties, corruption, conflict and institutional problems. In this article we explore responses to COVID-19 from the African Union (AU), to ascertain how regional responses have integrated the protection of the rights and interests of children. With the African Children’s Charter as a guide, it is argued that institutions at the AU continental and sub-regional levels are increasingly becoming aware of the importance of children’s rights as a distinct issue rather than being part of women’s concerns. The AU celebrated the thirtieth anniversary of the African Children’s Charter in 2020, and this occasion provides a timely opportunity to reflect on how regional institutions are integrating the principles of children’s rights in regional governance processes and decision-making.

The Influence of Community Leaders on the Criminal Justice System of Gender-based Violence in West Africa: A Case Study of Nigeria and Ghana

Gender-based violence (GBV) continues to be a global phenomenon. Though many African countries have taken legislative steps to criminalise various acts that constitute GBV, the effectiveness of which has been challenged and documented. Many victims/survivors seek informal communal justice that is appropriate and acceptable in their specific communities. This article examines community-based justice approaches in the criminal justice system of GBV crimes in West Africa, specifically in Nigeria and Ghana. While Nigeria is a purely patrilineal society, Ghana is a hybrid of both patrilineal and matrilineal societies. The article examines the influence of matrilineal culture on community justice regarding GBV crimes in Ghana. It examines the effectiveness of these approaches in identifying and punishing offenders as well as ensuring justice and closure for survivors as compared to formal justice in the prosecution of GBV offenders and the protection of survivors. The qualitative socio-legal method was adopted to conduct a desktop literature review as well as to collect fresh data by way of interviews. It was found that community-based justice is gaining popularity owing to several factors, including the slow process of formal justice dispensation, corruption and high rates of case attrition. Suggestions for reforms of the formal criminal justice system to gain a balance with the community systems of criminal justice in Nigeria and Ghana are made.

Understanding Diplomatic and Consular Inviolability—Learning from the Jamal Khashoggi Tragedy

The tragic killing of Jamal Khashoggi in the Saudi Consulate in Turkey has once again exposed the potential for abuse of privileges afforded diplomatic and consular missions. This incident, which involves torture and murder, occurred at a time when there was, and still is, a growing body of international jurisprudence that demands accountability for breaches of international law. These trends have seen a dilution in head-of-state immunity and increased calls for state responsibility in such instances. Understanding and interpreting the 1961 Vienna Conventions on consular and diplomatic inviolability, in light of these trends, will help to retain their relevance, foster growing accountability, and prevent breaches of international law. This is a piece of doctrinal legal research.

A Comparative Analysis of Director Tenure in South Africa and Selected International Jurisdictions

Director tenure attracts attention worldwide and is increasingly being recognised as a crucial element in assessing an external (independent non-executive) director’s independence. Director tenure has recently come under the spotlight in South Africa. Shareholder activists are expressing disapproval of lengthy tenures of directors serving on boards of listed public companies and exerting pressure on long-serving directors to resign from office. This article examines whether the South African corporate governance principles regulating director tenure are adequate or in need of revision. The article examines further the corporate governance practices in leading jurisdictions such as the United Kingdom, Malaysia, Singapore, Hong Kong, and India that have recently revised their corporate governance practices. It then makes recommendations for enhancing the South African corporate governance approach to director tenure. It also calls on directors to collaborate with shareholders and independent external experts to examine their approach to director tenure and, if circumstances allow, revise the company’s memorandum of incorporation to limit directors’ tenure or provide for a staggered rotation of directors on the board.

The (Extra-)territorial Scope Rules of the New European Data Protection Law from a Private International Law Perspective—A Model for South Africa?

Novel technical developments are a source for new business models and, at the same time, a challenge for legal systems and in particular data protection laws. A fundamental challenge in this respect is the delocalisation of data proceedings enabled by modern technologies. In addition, most cases related to such new data driven business models contain foreign elements. From a data protection perspective this raises numerous legal questions, related to the territorial scope of data protection instruments and their relation to the established rules and principles of private international law. The European General Data Protection Regulation (GDPR) addresses the delocalisation with extra-territorial scope rules, but the discussion on how those provisions are embedded in the legal framework of private international law has only started. This article will address those questions in context of the GDPR and the South African Protection of Personal Information Act (POPIA) from a comparative perspective. After a brief overview of the GDPR, the requirements of the territorial scope rules of Articles 3(1) and (2) GDPR will be examined. Thereafter, the doctrinal classification of these rules within the established categories of private international law and the question of whether a choice of the applicable data protection law is permitted within the legal framework of the EU will be investigated. In conclusion, the article examines the territorial scope of the POPIA and provides recommendations for an improvement of the existing rules de lege ferenda.

Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

‘Marriage by capture’ among the Hmong people in the United States of America and ukuthwala in South Africa both take the form of the mock abduction of a young woman for the purpose of a customary marriage. The noteworthy point about these two customary marriage practices is that, although Hmong marriage by capture takes place in the context of a minority community in a liberal state, and ukuthwala occurs in a postcolonial state, courts in these jurisdictions convert these marriage practices to the common law offences of rape, assault, and abduction. This article reflects on the accused-centred approach in the case of People v Moua, in which the court invoked the cultural defence, and the victim-centred approach in Jezile v S, which severed cultural values from the rights of the woman. It questions whether the two communities in question, in their respective liberal and postcolonial settings, influence the attitudes of the courts in cases involving rape, assault, and abduction charges. The main argument proffered is that both approaches may encourage communities to continue marriage abduction practices without bringing them to the attention of investigative organs, with adverse human rights implications for the women and girls affected. The ultimate purpose of this conversation, therefore, is to show how the approaches of the courts to the recognition or non-recognition of these customary practices affect the rights of girls and women who encounter institutions of law that alienate people belonging to minority cultural groups, and often perpetuate injustice.