Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16888
E. Zitzke
In this article the Constitutional Court judgments of Justice Johan Froneman are analysed with the aim of assessing his contribution to the South African law of delict. It is argued that traditional delict scholarship in South Africa is common-law centric in the sense that the common-law rules and principles that regulate the discipline are regarded as "delict proper" while constitutional considerations, statutes, and the customary law of injuries are effectively side-lined as "delict improper". Justice Froneman's approach to adjudicating delictual (or delict adjacent) matters has the effect of de-centring the common law's hegemony in our discipline. Instead, Froneman encourages those who work with delict to: Infuse it with constitutional spirit continuously; respect the legislature's important democratic role that should not be forced into common-law categories of thinking; take up the challenge of Africanising the common law through a healthy exchange with customary law; and see delict as a discipline that has restorative-justice potential. In this contribution, it is argued that these common law de-centring principles in Justice Froneman's delictual jurisprudence is transformative and critical in nature. As such, those seeking to merge the basic tenets of transformative constitutionalism, South African critical legal studies, and legal practice, may find great value in Froneman's delictual jurisprudence.
{"title":"Justice Froneman and Transformative Delict","authors":"E. Zitzke","doi":"10.17159/1727-3781/2024/v27i0a16888","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16888","url":null,"abstract":"In this article the Constitutional Court judgments of Justice Johan Froneman are analysed with the aim of assessing his contribution to the South African law of delict. It is argued that traditional delict scholarship in South Africa is common-law centric in the sense that the common-law rules and principles that regulate the discipline are regarded as \"delict proper\" while constitutional considerations, statutes, and the customary law of injuries are effectively side-lined as \"delict improper\". Justice Froneman's approach to adjudicating delictual (or delict adjacent) matters has the effect of de-centring the common law's hegemony in our discipline. Instead, Froneman encourages those who work with delict to: Infuse it with constitutional spirit continuously; respect the legislature's important democratic role that should not be forced into common-law categories of thinking; take up the challenge of Africanising the common law through a healthy exchange with customary law; and see delict as a discipline that has restorative-justice potential. In this contribution, it is argued that these common law de-centring principles in Justice Froneman's delictual jurisprudence is transformative and critical in nature. As such, those seeking to merge the basic tenets of transformative constitutionalism, South African critical legal studies, and legal practice, may find great value in Froneman's delictual jurisprudence.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"28 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141355711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16893
J. Barnard-Naudé
This article explores the meaning of minor jurisprudence in the work of leading authors on the subject and concludes that the notion of becoming plays a major part in the philosophy of minor jurisprudence as a subtraction from or subversion of the major. The article then connects the preoccupation with becoming in minor jurisprudence to the notion of the hysteric's discourse in the work of Jacques Lacan, after which it moves to a consideration of Froneman, J's minority judgment in the Beadica case. The article suggests that Froneman's minor jurisprudence becomes in three modes: reliance on historical minor jurisprudences, deconstruction and imagination from the margins. As such, this becoming is an instance of hysterical discourse in Lacan's sense of the term.
{"title":"Contract from the Margins: The Becoming of a Minor Jurisprudence in the Minority Judgment of Froneman, J in Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 5 SA 247 CC","authors":"J. Barnard-Naudé","doi":"10.17159/1727-3781/2024/v27i0a16893","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16893","url":null,"abstract":"This article explores the meaning of minor jurisprudence in the work of leading authors on the subject and concludes that the notion of becoming plays a major part in the philosophy of minor jurisprudence as a subtraction from or subversion of the major. The article then connects the preoccupation with becoming in minor jurisprudence to the notion of the hysteric's discourse in the work of Jacques Lacan, after which it moves to a consideration of Froneman, J's minority judgment in the Beadica case. The article suggests that Froneman's minor jurisprudence becomes in three modes: reliance on historical minor jurisprudences, deconstruction and imagination from the margins. As such, this becoming is an instance of hysterical discourse in Lacan's sense of the term.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"52 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141358477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16795
Felix Dube
The retirement of Justice Johan Froneman from the Constitutional Court of South Africa provides an ideal opportunity to reflect on his approach to collegiality and tolerance of difference. Like his predecessors, Justice Froneman navigated a delicate balance between collegiality and dissent. While the diverse backgrounds and experiences of his judicial colleagues enriched the Court's deliberations, Justice Froneman's dissents demonstrated the need for the Court to function as a cohesive unit to resolve judicial differences. His insistence on understanding the proper context of issues, taking account of relevant facts and synthesising opposite viewpoints was particularly pronounced in cases involving potentially divisive moral and ideological questions. Cases that touched on South Africa's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between collegiality and dissent, thereby showing that tensions between unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the development of the Court's jurisprudence on tolerance
{"title":"Judicial Collegiality and Tolerance of Difference: Insights from Justice Johan Froneman's Dissents","authors":"Felix Dube","doi":"10.17159/1727-3781/2024/v27i0a16795","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16795","url":null,"abstract":"The retirement of Justice Johan Froneman from the Constitutional Court of South Africa provides an ideal opportunity to reflect on his approach to collegiality and tolerance of difference. Like his predecessors, Justice Froneman navigated a delicate balance between collegiality and dissent. While the diverse backgrounds and experiences of his judicial colleagues enriched the Court's deliberations, Justice Froneman's dissents demonstrated the need for the Court to function as a cohesive unit to resolve judicial differences. His insistence on understanding the proper context of issues, taking account of relevant facts and synthesising opposite viewpoints was particularly pronounced in cases involving potentially divisive moral and ideological questions. Cases that touched on South Africa's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between collegiality and dissent, thereby showing that tensions between unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the development of the Court's jurisprudence on tolerance","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"46 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141355327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16945
Isolde de Villiers
In the inner city of Tshwane stand the skeletons of four high-rise buildings – the remains of Schubart Park. While there are no more people inside the ruins of these buildings, they contain the stories of the relations between a city and its inhabitants. In 2012 Justice Froneman wrote the judgment that ordered that the inhabitants of Schubart Park should be reinstated in their former homes, after they were evicted by the City of Tshwane in 2011. More than ten years after his judgment, there is (again) a plan to move the former residents back. From a spatial justice perspective and through Ann Stoler's work on ruination, Chris Butler's call for inhabiting the ruins and Ivan Vladislavić's short story We Came to the Monument, I reflect on how court judgments stand between the possible and the impossible. I call for a re-imagination of the ways in which the municipality can relate to the inhabitants of the City and argue that Justice Froneman enables this re-imagination through his judgment in Schubart Park.
{"title":"Inhabiting the Ruins of the City of Tshwane","authors":"Isolde de Villiers","doi":"10.17159/1727-3781/2024/v27i0a16945","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16945","url":null,"abstract":"In the inner city of Tshwane stand the skeletons of four high-rise buildings – the remains of Schubart Park. While there are no more people inside the ruins of these buildings, they contain the stories of the relations between a city and its inhabitants. In 2012 Justice Froneman wrote the judgment that ordered that the inhabitants of Schubart Park should be reinstated in their former homes, after they were evicted by the City of Tshwane in 2011. More than ten years after his judgment, there is (again) a plan to move the former residents back. From a spatial justice perspective and through Ann Stoler's work on ruination, Chris Butler's call for inhabiting the ruins and Ivan Vladislavić's short story We Came to the Monument, I reflect on how court judgments stand between the possible and the impossible. I call for a re-imagination of the ways in which the municipality can relate to the inhabitants of the City and argue that Justice Froneman enables this re-imagination through his judgment in Schubart Park.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"10 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141357593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16796
Matthew Kruger
This paper draws on the concurring judgment of Froneman J in Agri SA to articulate a "new and fresh approach" to the power to expropriate and duty to compensate in section 25 of the Constitution. In Agri SA, the Constitutional Court had to consider whether the provisions in the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) expropriated property and, if so, what form of compensation was required as a result. The answers that Froneman J provides, rooted in his conception of "compensation in kind", offer a framework to enable rational, purposive and wide-ranging transformation of property through legislation. Work, though, is needed to clarify the structure and implications of his approach. This paper provides that clarity. After an introduction, Part 2 unpacks the transformative, i.e., radical, nature of the change effected by the MPRDA, distinguishing it from reform. Armed with this distinction, it is argued that Froneman J's concepts of expropriation and compensation are rooted in a practical concern for: (a) the good and bad forms of being that Parliament wanted to facilitate and frustrate by way of the MPRDA; (b) the relations constitutive of these forms; and (c) the property that is needed to facilitate or frustrate the relations and forms. Part 3 clarifies the nature of Froneman's approach, by focusing on s 25(3) of the Constitution of the Republic of South Africa, 1996, demonstrating that the factors it lists are concerned with maximally facilitating old and new goods, whilst always conscious of the fact that transformation by nature cannot avoid the need to sacrifice some goods for the sake of others. Part 4 offers some concluding thoughts.
{"title":"Compensation as Radical Transformation","authors":"Matthew Kruger","doi":"10.17159/1727-3781/2024/v27i0a16796","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16796","url":null,"abstract":"This paper draws on the concurring judgment of Froneman J in Agri SA to articulate a \"new and fresh approach\" to the power to expropriate and duty to compensate in section 25 of the Constitution. In Agri SA, the Constitutional Court had to consider whether the provisions in the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) expropriated property and, if so, what form of compensation was required as a result. The answers that Froneman J provides, rooted in his conception of \"compensation in kind\", offer a framework to enable rational, purposive and wide-ranging transformation of property through legislation. Work, though, is needed to clarify the structure and implications of his approach. This paper provides that clarity.\u0000After an introduction, Part 2 unpacks the transformative, i.e., radical, nature of the change effected by the MPRDA, distinguishing it from reform. Armed with this distinction, it is argued that Froneman J's concepts of expropriation and compensation are rooted in a practical concern for: (a) the good and bad forms of being that Parliament wanted to facilitate and frustrate by way of the MPRDA; (b) the relations constitutive of these forms; and (c) the property that is needed to facilitate or frustrate the relations and forms. Part 3 clarifies the nature of Froneman's approach, by focusing on s 25(3) of the Constitution of the Republic of South Africa, 1996, demonstrating that the factors it lists are concerned with maximally facilitating old and new goods, whilst always conscious of the fact that transformation by nature cannot avoid the need to sacrifice some goods for the sake of others. Part 4 offers some concluding thoughts.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"19 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141357282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16936
K. van Marle
My tentative argument in this piece is that Justice Johan Froneman's engagement with history can be read as "subversive" and that this very subversiveness holds the possibility to destabilise legal culture and disclose possibilities for a "rewriting", a "re-orientation" of jurisprudence, and of law. I explore to what extent the way in which legal scholars, professionals and in particular judges invoke history and memory influences legal culture, and accordingly how we understand and do law.
{"title":"Going Against the Grain – Justice Froneman as Subversive (Legal) Historian","authors":"K. van Marle","doi":"10.17159/1727-3781/2024/v27i0a16936","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16936","url":null,"abstract":"My tentative argument in this piece is that Justice Johan Froneman's engagement with history can be read as \"subversive\" and that this very subversiveness holds the possibility to destabilise legal culture and disclose possibilities for a \"rewriting\", a \"re-orientation\" of jurisprudence, and of law. I explore to what extent the way in which legal scholars, professionals and in particular judges invoke history and memory influences legal culture, and accordingly how we understand and do law.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"57 14","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141358445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a17836
Edwin Cameron
A tribute to Johan Froneman, by a longstanding colleague and friend.
一位多年的同事和朋友向约翰-弗罗曼致敬。
{"title":"Tribute to Johan Froneman","authors":"Edwin Cameron","doi":"10.17159/1727-3781/2024/v27i0a17836","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17836","url":null,"abstract":"A tribute to Johan Froneman, by a longstanding colleague and friend. ","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"40 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141358776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a16938
Danie Brand
In this article in honour of Justice Johan Froneman, I consider an early judgment of his on the Constitutional Court, Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC). I read the case as an important property law judgment, showing already at an early stage in the Court's jurisprudence strong traces of a transformative vision of property law developed by Van der Walt, Ngcukaitobi and Wilson, among others that I describe as a democratised property law. I show how the three pillars of this approach (the move from objects to objectives; the opening up of the canon of recognised property interests; and the move from property to propriety) all feature in Froneman J's Bengwenyama judgment. On this basis I then conclude by making the point that real transformation of property law derives much more from the kinds of "small moves" made by Froneman J in Bengwenyama than from the grand-scale solutions such as "expropriation without compensation" or state custodianship of land that have dominated political imagination over the past several years.
{"title":"Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd: Johan Froneman, the Transformation of Property Law and the Virtue of Small Things","authors":"Danie Brand","doi":"10.17159/1727-3781/2024/v27i0a16938","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16938","url":null,"abstract":"In this article in honour of Justice Johan Froneman, I consider an early judgment of his on the Constitutional Court, Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC). I read the case as an important property law judgment, showing already at an early stage in the Court's jurisprudence strong traces of a transformative vision of property law developed by Van der Walt, Ngcukaitobi and Wilson, among others that I describe as a democratised property law. I show how the three pillars of this approach (the move from objects to objectives; the opening up of the canon of recognised property interests; and the move from property to propriety) all feature in Froneman J's Bengwenyama judgment. On this basis I then conclude by making the point that real transformation of property law derives much more from the kinds of \"small moves\" made by Froneman J in Bengwenyama than from the grand-scale solutions such as \"expropriation without compensation\" or state custodianship of land that have dominated political imagination over the past several years.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"79 11","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141359609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-11DOI: 10.17159/1727-3781/2024/v27i0a17876
K. van Marle, Elmien Du Plessis
Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.
{"title":"Editorial: Artifacts of judging: Justice Johan Froneman","authors":"K. van Marle, Elmien Du Plessis","doi":"10.17159/1727-3781/2024/v27i0a17876","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17876","url":null,"abstract":"Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the \"rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right\". He further argued for the Constitution \"to become … a living document\".\u0000In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman.\u0000Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal.\u0000In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"98 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141359263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-06-05DOI: 10.17159/1727-3781/2024/v27i0a13517
Linda Mushoriwa
This article gives an overview of the jurisdiction of the proposed African Court of Justice and Human Rights (African Court) over the transnational crime of trafficking in hazardous wastes as provided for in Article 28 L of the Malabo Protocol. It asserts that Article 28 L ought to be considered as emancipatory in view of the factors which motivated its inclusion in the Protocol; and that it is a significant innovation not only for the African Union but for the field of international criminal justice as a whole. The article concludes that the criminalisation of trafficking in hazardous waste through the Malabo Protocol is necessary as Article 28 L will help to fill the gap created by the ineffectiveness of the domestic implementation of the Bamako Convention, and the potential ineffectiveness of the Basel Ban Amendment, which entered into force in December 2019.
本文概述了拟议的非洲司法和人权法院（非洲法院）对《马拉博议定书》第 28 L 条规定的贩运危险废物跨国犯罪的管辖权。文章认为，鉴于促使第 28 L 条被纳入《议定书》的各种因素，应将其视为一种解放；不仅对非洲联盟，而且对整个国际刑事司法领域而言，这都是一项重大创新。文章的结论是，通过《马拉博议定书》将贩运危险废物定为刑事犯罪是必要的，因为第28 L条将有助于填补《巴马科公约》在国内执行不力以及2019年12月生效的《巴塞尔禁令修正案》可能无效所造成的空白。
{"title":"The African Court's Jurisdiction over the \"International\" Eco-Crime of Trafficking in Hazardous Wastes: Challenges and Opportunities","authors":"Linda Mushoriwa","doi":"10.17159/1727-3781/2024/v27i0a13517","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a13517","url":null,"abstract":"This article gives an overview of the jurisdiction of the proposed African Court of Justice and Human Rights (African Court) over the transnational crime of trafficking in hazardous wastes as provided for in Article 28 L of the Malabo Protocol. It asserts that Article 28 L ought to be considered as emancipatory in view of the factors which motivated its inclusion in the Protocol; and that it is a significant innovation not only for the African Union but for the field of international criminal justice as a whole. The article concludes that the criminalisation of trafficking in hazardous waste through the Malabo Protocol is necessary as Article 28 L will help to fill the gap created by the ineffectiveness of the domestic implementation of the Bamako Convention, and the potential ineffectiveness of the Basel Ban Amendment, which entered into force in December 2019.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"5 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141383833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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