Church law as a ius sui generis in South Africa : a reformed perspective

For more than 2,500 years, the Western tradition has embraced monogamous marriage as an essential institution for the flourishing of men and women, parents and children, society and the state. At the same time, polygamy has been considered a serious crime that harms wives and children, correlates with sundry other crimes and abuses, and threatens good citizenship and political stability. The West has thus long punished all manner of plural marriages and denounced the polygamous teachings of selected Jews, Muslims, Anabaptists, Mormons, and others. John Witte, Jr carefully documents the Western case for monogamy over polygamy from antiquity until today. He analyzes the historical claims that polygamy is biblical, natural, and useful alongside modern claims that anti-polygamy laws violate personal and religious freedom. While giving the pro and con arguments a full hearing, Witte concludes that the Western historical case against polygamy remains compelling and urges Western nations to hold the line on monogamy.

The Western Case for Monogamy Over Polygamy

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Religious discrimination in the South African workplace

Rebellion has been an incessant feature of human history and every society has had to struggle with it. The states of Israel and Judah were no different in this regard. These two societies, insofar as they are represented in the Hebrew Bible, discussed the topic of rebellion with some frequency. Their discussions provide readers with a window into what some in ancient Israel thought about this political act. As is the case with many societies, the language of rebellion in ancient Israel was vast and complicated. As a result, modern scholars have often confused the numerous rebellion terms appearing in the Hebrew Bible (e.g. drm, ovp, rvq, afh) and have failed adequately to discuss others as rebellion terms (e.g. ovy). In the following dissertation, I will clarify what these terms indicate in a rebellion context and highlight additional terms the biblical writers use to describe rebellion. The results of my research demonstrate that while the ancient Israelites may not have written political treatises on the phenomenon of rebellion, they did have a set of interrelated terms in place, a type of terminological system, to describe the various types of rebellions that existed within their society. The presence of the system, along with the ways in which they manipulated it, betray, albeit to a limited extent, their recognition of a larger or overall category of rebellion. The biblical writers had descriptive words to describe rebellion, as in drm, ovp and rvq. They had expressions that could stand in to describe rebellion as in b dy Mwr. There are also positive rebellion terms—ovy and lxn—that focus on the aspect of liberation. In contrast the biblical writers also employ terms connected to criminal behavior (e.g. afj) to describe select rebellions. The words they chose and the contexts in which these words appear betray their

The Language of Rebellion in the Hebrew Bible and the Ambivalent Attitude(s) It Represents

In 2003, after more than 10 years of policy debate and public controversy, the South African minister of education announced a new policy for religion and education that distinguished between religious interests, which are best served by religious communities, and educa tional objectives for teaching and learning about religion, religions, and religious diversity that should be served by the curriculum of public schools. This article locates South Africa's new policy for religion and education in relation to attempts to redefine the role of the state in the transition from apartheid to democracy. The policy emerged within a new constitutional framework, which ensured freedom for religious expression and freedom from religious discrimination, but also within the context of state initiatives to affirm cultural diversity and mobilize unifying resources for social transformation. Accordingly, this article examines South Africa's policy for religion and public education as an index for understanding post-apartheid efforts in redefining the state as a constitutional, cultural, and transformative state.

Religion Education and the Transformational State in South Africa

Part I of this Article scrutinizes the current definition of genocide in view of its theoretical circumscription in the Genocide Convention and with special reference to the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu. Part II considers the validity and the application of the principle of universal jurisdiction to the crime of genocide, and the consequent duty of states to bring perpetrators of genocide to justice. Part III focuses on the jurisdiction ratione materia of the ICC regarding the crime of genocide. Part IV will pay special attention to the prosecution of genocide in the United States.

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Prosecution and Punishment of the Crime of Genocide

When one considers the constitutional history of South Africa, two aspects of its legal arrangements of yesteryear always come to mind: the systematic institutionalization by the state of racist structures; and, in the context of religious matters, a distinct bias for (a certain brand of) Christianity. These two seemingly contradictory attributes of the South African social, economic, political, and legal make-up have at least this in common: they denote the fabric of a totalitarian regime both in the sense of the state's interference in the private lives of individuals and of the state's regulation of the internal affairs of nonstate social institutions. For reasons that will be stipulated later, the meaning and implications of the current constitutional dispensation cannot be fully appreciated without an insight in, and due consideration of, the country's past history. But there is yet a further contingency brought about by the constitutional transformation of South Africa in 1994 which has an impact on the interpretation of legally regulated South African institutions. It can perhaps best be depicted as the Africanization of those institutions. Ever since the first white settlement in Southern Africa in 1652, governmental control and economic power were, by and large, the preserves of the country's minority white elite, and were consequently deliberately designed and executed according to a distinctly Western, and more precisely, European, model. Typically, this system indeed accommodated African social and legal structures, but only for Africans who, through personal choice or the pressures of involuntary circumstances, upheld a "traditional" life-style and were decidedly segregated from the patterns of mainstream living. The "new" South Africa seeks to be of Africa; its institutions must therefore be seen to reflect "typical African values."1 I. THE HISTORICAL PERSPECTIVE The political and legal system of pre-1994 South Africa was particularly noted for the totalitarian interference of the state in the private sphere of people's day-to-day lives.2 In apartheid South Africa, the state prescribed, with race as the prime criterion, whom one could marry, where one could reside and own property, which schools and universities one would be allowed to attend, and which jobs were reserved for persons of a particular race. The state dictated to sports clubs whom they could admit as members, and against whom they were permitted to compete. The sick had to be conveyed in racially exclusive ambulances, could only receive blood transfusions from donors of their own race, and only qualified for treatment in racially defined hospitals. The state even regulated, with race as the primary criterion, who would be allowed to attend church services in certain regions, and where one could be buried.3 These racist appendices of a totalitarian regime did not reflect the "spirit" of, at least, the victims of their practical impact, which-as everyone knows-constituted a vast majority of the South African nation. Nor were they supported by the religious convictions of the people, or of a majority of the people, or for that matter of any distinct section of the people. Deliberate attempts to resort to the power of the sword as an instrument for the enforcement of the scruples of a dominant religion was also a distinct feature of the institutionalized structures of South Africa. The law regulating publications control thus provided: "In the application of this Act the constant endeavour of the population of the Republic of South Africa to uphold a Christian view of life shall be recognised."4 The law that regulated the educational system for whites mandated the ideology of Christian-national education,5 while another statute required that education in black (African) schools maintain a Christian characters (without the "national" component that applied in the case of segregated white schools). The commonlaw offence of blasphemy applied to the slandering of the God confessed by Christianity only. …

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Constitutional Perspective of Church-State Relations in South Africa

Nasionalisering van mineraleregte in Suid-Afrika
Die Wet op die Ontwikkeling van Minerale en Petroleum Hulpbronne, Wet 28 van 2002, het grondeienaars van hulle eiendomsreg ten aansien van onontginde minerale en petroleum produkte ontneem en bepaal nou dat minerale en petroleum hulpbronne "die gemeenskaplike erfenis van die hele bevolking van Suid-Afrika" is met die Staat as die bewaarder daarvan Prospekteer- en mynregte ten aansien van "ongebruikte ou orde regte" en met betrekking tot die oorskakeling van "ou orde prospekteerregte" en "ou orde mynregte" na "nuwe orde" prospekteer en/of mynregte is onderworpe gestel aan ingrypende tydsbeperkings en veeleisende substantiewe voorwaardes wat deur die Minister van Minerale en Energie Aangeleenthede goedgekeur moet word Terwyl die Staat in die verlede prospekteer- en mynregte gereguleer het, hoofsaaklik met die doel om veiligheid en omgewingsbewaring te bevorder, het die wetgewer nou streng vereistes gestel vir die vergunning van prospekteer en/of mynregte omdat dit eienaar geword het van minerale en petroleum hulpbronne – of as personifikasie van "die bevolking van Suid-Afrika" of as 'n openbare trustee van "die erfenis van die hele bevolking van Suid-Afrika"
Artikel 25 van die Grondwet van die Republiek van Suid-Afrika maak 'nonderskeid tussen ontneming van eiendom, wat nie die betaling vanvergoeding deur die Staat vereis nie, en onteiening, waarvoor wel vergoeding betaal moet word Dit word algemeen aanvaar dat onteiening bestaan uit ontneming plus 'n bykomstige element of bykomstige elemente Daar is twee moontlike faktore wat 'n ontneming in onteiening kan omskep: of die verkryging van eiendomsreg ten aansien van dit wat ontneem is deur 'n ander entiteit, byvoorbeeld die Staat, of soos wat in Artikel 25 aangedui word, deur die ontneming van die eienaar se regte in die openbare belang of vir 'n openbare doel In hierdie artikel word geargumenteer dat die ontneming van minerale en petroleum hulpbronne onder enigeen van die twee persepsies op onteiening neerkom

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Nationalisation of mineral rights in South Africa

South Africa's relatively peaceful transition from apartheid to democracy would not have been possible without the prevalence of a spirit of solidarity (ubuntu), not only within South Africa but across the continent, since it is largely due to African solidarity with the struggle against apartheid that an enabling environment for negotiation could be created. Therefore, the importance of including the unique and unprecedented solidarity rights of peoples in the African Charter on Human and Peoples' Rights cannot be emphasised enough. The rights of peoples - to existence, equality, self-determination, sovereignty over natural resources, peace and security, development and a satisfactory environment - were included in the African Charter for historical and philosophical reasons rooted uniquely in the African experience. The recognition of these rights has been resisted in other parts of the world along the lines of ideological division drawn during the Cold War. Solidarity rights, founded on the philosophy of African humanism, did not fit into the Cold War jurisprudential dichotomy, which featured, at the one extreme, the Western emphasis on liberty, rights and competition and, at the other extreme, the Eastern emphasis on equality, duties and compulsion. The solidarity rights rather represented an African emphasis on fraternity, reciprocity and compassion. African humanism has been applied in practice as a viable and valuable legal philosophy, particularly by the Constitutional Court of South Africa. Solidarity rights in the African Charter are similarly applicable as viable and valuable legal constructs, and therefore their precise contents and consequences may and must be explored through practical enforcement.

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Prosecuting the President of Sudan : a dispute between the African Union and the international criminal court

Torture has been widely practiced during the entire recorded history of humankind For example: to obtain information about the enemy or enemy strategies in situations of armed conflict; (1) in criminal justice systems to invite a confession; (2) as a form of punishment; (3) or in a political society as a means of suppressing opposition (4) Torture was not considered illegal in some criminal justice systems '"The torture of a criminal during the course of his trial," wrote Cesare Beccaria, (5) "is a cruelty consecrated by custom in most nations" (6) He went on to explain: It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty (7) Aristotle, for example, listed tortures--alongside "laws, witnesses, contracts,  [and] oaths"--as '"non-technical' means of persuasion" (ie, those besides rhetoric) (8) In elaborating on torture as a means of persuasion, he warned that "people under its compulsion lie just as often, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner" (9) Elsewhere, Aristotle discussed the proposition that "[e]vidence given under torture is  more trustworthy than ordinary testimony  but those who are under torture gain by telling the truth, for doing so will bring them the speediest relief from their sufferings" (10) He then argued that others may lie under torture to "escape the suffering of the moment" (11) Given these conflicting responses to torture, one must always evaluate evidence procured under torture for its plausibility or implausibility, reasoned Aristotle (12) In Roman law, it was customary for torture to be applied in order to uncover the commission of a crime (13) However, in The Digest, Justinian listed the opinions of numerous publicists on classical Roman law, including Ulpian, Modestinus, Papinian, and Paul, to illustrate that resort to torture in criminal cases was not unlimited (14) For example: '"[r]ecourse should only be had to the infliction of pain on slaves when the criminal is [already] suspect, and is brought so close to being proved [guilty] by other evidence that the confession of his slaves appears to be the only thing lacking'" (Ulpian); (15) "[a] person who has made a confession on his own account shall not be tortured in a capital case affecting others" (Modestinus); (16) "in a case of stuprum [(unchastity)], slaves are not [to be] tortured [to give evidence] against their master" (Papinian); (17) interrogations under torture were not to be requested in every case, but only if a capital or more serious crime could not be vindicated and investigated in any way other than by torturing slaves (Paul) (18) Under Roman influence, English common law also permitted torture as a means of eliciting a confession or for obtaining evidence from an uncooperative witness (19) Tasswell-Langmead, for example, recorded the case in 1615 of Edmund Peacham, Rector of St George church in Somersetshire who, suspected of seditious conspiracy, "was put to the rack and examined  'before torture, in torture, between torture, and after torture'" (20) However, times have changed and today torture is widely condemned (21) It has been described as "a cruel assault upon the defenseless" (22) and as "inherently abhorrent" (23) "[E]ven a murderer," decided Chief Judge Posner, "has a right to be free from torture" (24) Its proscription has indeed come to be recognized as a peremptory norm of general international law ("ius cogens") (25) This essay will seek to define the concept of torture as proclaimed in international law (Part I) and distinguish torture as a crime against humanity and as a war crime (Parts II A and B) …

D Johan

Papers

Prosecution and Punishment of the Crime of Genocide

Constitutional Perspective of Church-State Relations in South Africa

Nationalisation of mineral rights in South Africa

Prosecuting the President of Sudan : a dispute between the African Union and the international criminal court

Torture as a Crime under International Law