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South Africa’s mixed, pluralistic legal order demands a nuanced approach to cultural expertise in litigation. Culture in general and cultural expertise in particular have always played an important role in all areas of law, both state and non-state, and a rich collection of jurisprudence is available to serve as illustration. Even though both the common law and the customary law are both recognized legal systems, they are treated differently by the judiciary. The general rule is that judicial notice must be taken of the common law rules and that judicial notice of customary law may only be taken “in so far as such law can be ascertained readily and with sufficient certainty.” The ascertainment of customary law provides a challenge to the judiciary because of its adaptive inherent flexibility and indeterminate nature, especially where the rules are oral or so-called “living” customary law. Cultural expertise also plays an important role in the case of non-state law. A considerable quantity of case law exists where the courts have considered expert evidence regarding the content of certain religious legal systems to provide protection to litigants claiming that they are subject to those systems. The aim of this contribution is to investigate the diverse approaches of the South African courts when it comes to the admissibility of expert evidence in cases where culture (both custom and religion in both state and non-state law) is relevant. The fact that the South African legal system has its roots firmly in Western law and has been confronted with cultural diversity for a very long time might provide some lessons to the Western world, even if those lessons are only to prevent it from making the same mistakes as the South African legal system has made or might still be doing.

Discusses principles of equality and justice in order to justify affirmative action and clarify its need. Posits that in both the USA and South Africa, issues of segregation and discrimination are not new and both countries have had the opportunity to address their past policies by way of affirmative action programmes. Looks at what determined the denouncement of the affirmative action in the USA and why the answer to this question may have a great impact on South Africa’s attempt to improve its own affirmative action programmes. Concludes that, although 30 years of affirmative action was deemed unconstitutional, how can South Africa derive and make use of the knowledge gained to help in stopping reverse discrimination.

Asylum seekers, refugees and immigrants’ access to healthcare vary in South Africa and Cape Town due to unclear legal status. The purpose of this paper is to shed light on the source of this variation, the divergence between the 1996 South African Constitution, the immigration laws, and regulations and to describe its harmful consequences.

Based on legal and ethnographic research, this paper documents the disjuncture between South African statutes and regulations and the South African Constitution regarding refugees and migrants’ access to healthcare. Research involved examining South African jurisprudence, the African Charter, and United Nations’ materials regarding rights to health and health care access, and speaking with civil society organizations and healthcare providers. These sources inform the description of the immigrant access to healthcare in Cape Town, South Africa.

Asylum-seekers and refugees are entitled to health and emergency care; however, hospital administrators require documentation (up-to-date permits) before care can be administered. Many immigrants – especially the undocumented – are often unable to obtain care because of a lack of papers or because of “progressive realization,” the notion that the state cannot presently afford to provide treatment in accordance with constitutional rights. These explanations have put healthcare providers in an untenable position of not being able to treat patients, including some who face fatal conditions.

The research is limited by the fact that South African courts have not adjudicated a direct challenge to being refused care at healthcare facility on the basis of legal status. This limits the ability to know how rights afforded to “everyone” within the South African Constitution will be interpreted with respect to immigrants seeking healthcare. The research is also limited by the non-circulation of healthcare admissions policies among leading facilities in the Cape Town region where the case study is based.

Articulation of the disjuncture between the South African Constitution and the immigration laws and regulations allows stakeholders and decision-makers to reframe provincial and municipal policies about healthcare access in terms of constitutional rights and the practical limitations accommodated through progressive realization.

In South Africa, immigration statutes and regulations are inconsistent and deemed unconstitutional with respect to the treatment of undocumented migrants. Hospital administrators are narrowly interpreting the laws to instruct healthcare providers on how to treat patients and whom they can treat. These practices need to stop. Access to healthcare must be structured to comport with the constitutional right afforded to everyone, and with progressive realization pursued through a non – discriminatory policy regarding vulnerable immigrants.

This paper presents a unique case study that combines legal and social science methods to explore a common and acute question of health care access. The case is novel and instructive insofar as South Africa has not established refugee camps in response to rising numbers of refugees, asylum seekers and immigrants. South Africans thus confront a “first world” question of equitable access to healthcare within their African context and with limited resources in a climate of increasing xenophobia.

A growing public concern among South African citizens is that of corruption in law enforcement, an awareness of which causes significant tension in the community – police relationship. The purpose of this paper is to investigate how law enforcement corruption influences service delivery satisfaction and public trust.

Data from the Victims of Crime Survey 2013/2014 for all nine provinces in South Africa were utilised, yielding a final sample of 25,605 respondents. By means of standard multiple-regression analysis, the study established that corruption statistically significantly influence service delivery satisfaction and public trust.

The demographic variables that statistically significantly influenced the aforementioned dependent variables were province, population group and age. Gender and religion were not found to influence law enforcement public trust and service delivery satisfaction significantly.

It is recommended that the findings be used to stimulate public debate and renew efforts to curb law enforcement corruption specifically by emphasising police integrity.

Limited empirical evidence can be found on the influence of law enforcement corruption on service delivery satisfaction and public trust especially in South Africa where police corruption is a serious concern. Determining the consequences of perceived corruption underscore the importance thereof and will renew efforts to curb as such the prevalence thereof.

The case study of South Africa could provide valuable lessons not only for South African policy makers but for other countries perilled by high crime rates, a lack of public trust and social segmentation.

Limited empirical evidence could be found on the influence of law enforcement corruption on service delivery satisfaction and public trust especially in South Africa where police corruption is a serious concern.

In this chapter, the author analyzes sentencing and incarceration practices in South Africa during the last 20 years, a period which saw the country transforming into a fully flexed democracy.

The concepts of sentencing, mandatory minimum sentencing, sentencing of children and incarceration are discussed. The past 20 years of democracy serve as a point of departure for this discussion. The retrospective nature of the adopted approach necessitates a heavy reliance on existing literature, but a statistical analysis is also relied upon. The author also reflects on research conducted during the last 20 years.

While it is almost impossible to duly consider all sentencing-related developments in democratic South Africa, important advances have been made but they were not always systematically followed through. Well-intended policies have at times been poorly executed. Specially, the correctional system destroyed all types of staff motivation through poor human resource practices.

Few scholars have considered the influence of sentencing practices on the South African inmate population, more particularly during the period of democracy that has been running for 20 years. This influence in the South African criminal justice system will be highlighted. The contribution of sentencing in the democratization of the country may be drawn from this discussion. The study may contribute to policy implementation for decades to come and through that, strengthen the South African democracy. At the same time, lessons from South Africa may serve as a roadmap for other young and established democracies.

The paper aims to identify issues in broadcasting and telecommunications regulation and law arising from technological convergence and to suggest a new framework for an integrated approach to policy and regulation.

A set of South African laws, regulations, bills and policy papers is reviewed to establish to what extent they promote, or at least adapt to, technological convergence using three tests: technological neutrality, integration of policy processes and a “level playing field” for competition.

It is suggested that current law and regulation fails to meet the South African Government's stated aim of promoting convergence. It is suggested that a reason for this may be the difference in the public interest “rationales” for broadcasting and telecommunications regulation, with the former being largely social and political and the latter largely economic. A new paradigm based on the constitutional principle of freedom of expression is suggested as providing a means of establishing a neutral public interest framework for developing and adapting regulation under conditions of technological convergence.

The research methodology is qualitative. Further research on the economic, social and political welfare costs of regulatory failures to adapt to convergence may be helpful in informing policy, legal and regulatory debates in the future.

This paper suggests a new rights‐based means of direct comparison of public interest costs and benefits across broadcasting and telecommunications using a principle that is present in the South African constitution as well as in international law.

African feminist scholars and activists have made major contributions to our understanding of gender-based violence. This is especially the case in southern Africa, which has a long history of high rates of violence against women and girls. Their rates of gender-based violence are among the very highest in the world. While there are many forms of gender-based violence, this chapter will explore the important contributions of African gender scholars and activists to our knowledge concerning domestic violence and rape. These issues will be interrogated using Zimbabwe and South Africa as case studies, with some reference to Namibia. In the region, domestic violence and sexual assault have deeply rooted structural explanations linked to the long history of colonialism, apartheid and white minority rule, political transition, economic crises and adjustment, changes in expected gender roles and the HIV/AIDS pandemic. In the past 25 years, Zimbabwe and South Africa attempted to address violence against women through the development of laws as well as the creation of non-governmental organizations. Although these important efforts have not resulted in a major decrease in violence against women, they clearly demonstrate the long history of African women’s actions in resisting state power and patriarchy. African women as citizens, scholars and activists are responsible for bringing to the fore the critical importance of reducing gender-based violence in order to establish strong, just and sustainable societies in southern Africa.

The purpose of this paper is to examine the complex and shifting relationship between the Anglo American Corporation (Anglo) and the South African State (“the State”) as reflected in Anglo’s annual reports.

This paper builds on research on the role of annual reports in ideological conflict. To examine the ongoing relationship between Anglo and the State, the authors read all the annual reports published by Anglo American from 1917 to 1975, looking for instances in which the corporation appeared to be attempting to address, criticise, compliment, or implore the State.

During the period under study, despite the apparent struggles between the South African State and Anglo American, the relationship between the two was primarily symbiotic. The symbolic confrontation engaged in by these two behemoths perpetuated the real, physical violence perpetrated on the oppressed workers. By appearing to be a liberal opponent of apartheid, Anglo was able to ensure continued investment in South Africa.

The examination of decades’ worth of annual reports provides an example of how these supposedly neutral instruments were used to contest and sustain power. Thereby, Anglo could continue to exploit workers, reap enormous profits, and maintain a fiction of opposition to the oppressive State. The State also benefited from its support of Anglo, which provided a plurality of tax revenue and economic expansion during the period.

This paper provides insights into the ways the State and other institutions sustain each other in the pursuit of economic and political power in the face of visible and widely condemned injustices. Although they frequently contested each other’s primacy, both benefited while black South African miners suffered.

The global spotlight is increasingly shone on the situation of women in the male-dominated prison environment. Africa has observed a 24% increase in its female prison population in the past decade. This year is the 10-year anniversary of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) adopted by the General Assembly on 21 December 2010.

Using a legal realist approach, this paper examines South Africa’s progress in adopting the Bangkok Rules. This paper documents the historical evolution of the penal system since colonial times, focused on the development of recognition, protection and promotion of human rights of prisoners and an assessment of incarcerated women’s situation over time.

The analysis of the human rights treaties, the non-binding international and regional human rights instruments, African court and domestic jurisprudence and extant academic and policy-based literature is cognizant of the evolutionary nature of racial socio-political dimensions in South Africa, and the indeterminate nature of application of historical/existing domestic laws, policies and standards of care when evaluated against the rule of law.

To date, there has been no legal realist assessment of the situation of women in South Africa’s prisons. This paper incorporates race and gendered intersectionality and move beyond hetero-normative ideologies of incarcerated women and the prohibition of discrimination in South African rights assurance. The authors acknowledge State policy-making processes, and they argue for substantive equality of all women deprived of their liberty in South Africa.