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Magister Legum - LLM

This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct. Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution. This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutional muster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution. The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity whic

This paper will analyse critically the main sources, namely UNCAC, the African Union Convention on Prevention and Combating Corruption (AU Convention), the Southern African Development Community Protocol against Corruption (SADC Protocol) and the Council of Europe Criminal Law Convention on Corruption (CoE Convention). Furthermore, the paper will examine the corresponding explanatory notes and try to provide a picture of the most important aspects of the issue. As many countries are obliged to consider the criminalisation of trading in influence, drawing an overview of it may make a substantial contribution to its comprehension. Due to the limited space, the paper is unable to cover all provisions of trading in influence in countries where it exists. Accordingly, the discussion will be restricted to the situation in France, Spain and Belgium. By analysing the position in these countries, the different approaches to criminalisation can be highlighted., Magister Legum - LLM

Nils Christie is acknowledged generally as the theoretical founding father of restorative justice. Evgeny Pashukanis may be taken as the premier Marxist theoretician of law. This essay represents an endeavour to read Christie through the lens of Pashukanism, that is, to comprehend the theory of restorative justice developed by Christie in relation to the general theory of law formulated by Pashukanis. The early part of the essay is expository: firstly, it sets out in abbreviated form the fundamental tenets of Pashukanis's so-called commodity form theory of law, with some attention being given to the Pashukanist approach to criminal justice; and secondly, it explains the core elements of Christie's theory of restorative justice, including his critique of western criminal justice and his advocacy of a system of "conflicts as property" as the answer to the crisis of criminality which plagues the western world. The latter part of the essay is critical: it compares and contrasts Christie's proprietary theory of restorative justice with Pashukanis's commodity form theory of law. On the one hand, it is argued that there exists a remarkable theoretical concordance between Christie and Pashukanis in the sense that Christie's idea of criminal conflict as property constitutes a non-Marxist vindication of Pashukanis's analysis of the legal form. On the other hand, it is posited that because Pashukanis proceeds from a Marxist perspective and Christie does not, there remain crucial areas of difference between them, especially as regards the historicity of the legal form, the concept of legal subjectivity, and the role of the state. In the light of these differences the essay concludes with a Pashukanist critique of the Christie thesis, seeking to assess the prospects of restorative justice replacing criminal justice as the generalised mode of disposition of criminal conflicts.