Newsletter 10/11

Interview with Justice Vincent Saldanha on the South African judicial system

Judges' independence, which is protected by the Constitution, is the keystone of the entire judicial edifice. The principle rules against any influence being exerted over judges, whose appointment is subject to preliminary hearings before the Judicial Service Commission. The selection of Constitutional Court judges in particular involves lengthy interviews, which are made public.

Collegiality is an important rule, as part of the sharing of skills and experiences.

It is interesting to note that a jurisdiction may, in complex cases, appoint assistants to supplement its resources and bring their professional or technical training to bear in resolving issues of fact or of law.

In addition, acting judges may be appointed for a period of several months, and may subsequently go on to join the magistracy.

Lastly, the dissenting opinion mechanism, particularly as regards cases before the Constitutional Court, allows judges to make known their opinion when this diverges from the majority opinion.

The Committee would like to thank Justice Vincent Saldanha, a High Court judge in the Cape, for this extremely helpful interview that has shed light on techniques (acting judges, dissenting opinions, assistants within a jurisdiction) that should be considered with interest in France.

Abolition of the death penalty: 30th anniversary in France and the example of South Africa in 1995

The 18th century Enlightenment marked the first tentative steps in the long march towards the abolition of capital punishment.

During the Age of Enlightenment in Europe, only one sovereign abolished the death penalty: Joseph II (1741-1790), Holy Roman Emperor, who in 1787 promulgated a new criminal code that did away with the death penalty.

This pioneering step for Europe was overturned by his successors in 1796.

The issue was debated during the French Revolution, but no majority in favour of abolition emerged in the parliamentary assemblies of the period.

In a quirk of history, Queen Marie-Antoinette of France, sister to Joseph II, was herself sentenced to death under the Revolution and executed by guillotine in Paris on 16 October 1793.

In the 19th century, Victor Hugo was an ardent campaigner against the death penalty.

The first abolitionist President of the French Republic was Armand Fallières: elected in 1906, at the start of his seven-year term of office he systematically pardoned all those under sentence of death. The law, however, remained unchanged.

RIt was not until 30 September 1981 that the French parliament voted for the abolition of the death penalty, in response to a bill introduced by Minister of Justice Robert Badinter, with the support of the President of the day, François Mitterrand.

In his earlier career as a lawyer, Robert Badinter had previously pleaded successfully on a number of occasions against the application of the death penalty by the criminal courts.

On 25 May 2010, in Paris, it was he who presented George Bizos, Nelson Mandela's counsel, with the medal for the abolition of the death penalty, on the occasion of a conference organised at the French Senate by the French Committee for South Africa.

George Bizos' long drawn-out campaign against the death penalty reached its culmination before the Constitutional Court of South Africa. In the first case brought before it, argued by George Bizos, the newly constituted court abolished capital punishment in an historic decision reached on 6 June 1995.

In the USA, there is no foundation for the continued existence of the death penalty in 34 States, one of them being Georgia, where Troy Davis was executed on 21 September 2011. Justice does not put a human being to death.

Progress in anti-malaria research

The Paris-based Institut Pasteur has successfully trialled an anti-malaria vaccine in children in Burkina Faso, which has been found to provide 64% to 77% protection against the disease.

Development of generic drugs should be subject to regular monitoring

Generic drugs, i.e. those which are no longer protected by intellectual property rights (generally after twenty years on the market), significantly reduce the cost of treating diseases such as HIV/AID, tuberculosis, diabetes, cancer or heart disease. In addition, for overriding reasons of public health, governments may introduce mandatory licences to reduce the cost of the most essential drugs. Such provisions form part of agreements reached within the WTO (World Trade Organization) that have been in force since January 1995.

International oversight should be provided by the World Health Organization and made the subject of public annual reports to measure the spread of generic drugs.

First UN Security Council resolution on climate change

On 20 July 2011, the United Nations Security Council added to its concerns the risk to peace posed by climate change.

Although the resolution has no binding legal effect, it sends a strong signal: "The Security Council expressed concern that the possible adverse effects of climate change could, in the long-run, aggravate certain existing threats to international peace and security".

Oldest ever bifacial tools discovered in Kenya

Stone tools shaped on both sides and dating from 1.76 million years ago have been found in Kenya, near Lake Turkana, by a CNRS team from the University of Paris-Ouest. These are the oldest advanced stone tools made by early humans yet discovered.

Cooperation between Réunion and South Africa

As a result of its strategic position and the political, economic, social and cultural necessities stemming from its geographic location, the island of Réunion (a French region) has a long history of giving a regional and international perspective to its development initiatives. Réunion joined the Indian Ocean Commission (COI-IOC) in 1986, and has since developed multilateral cooperation initiatives in a number of sectors. More recently, Réunion has strengthened its relations with COMESA (Common Market for Eastern and Southern Africa) and SADC (Southern Africa Development Community).

An initial agreement was signed on 15 July 2003, after two years of negotiations between the Réunion Regional Council and the province of KwaZulu-Natal, at a ceremony attended by a large delegation of institutional, social and professional managers from Réunion. Even before the partnership was formally in place, Réunion had already engaged in a number of projects with KwaZulu-Natal, under which South African high school students attended agricultural schools in Réunion, while students from Réunion interned with the South African Experiment Station, a research centre specialising in the sugar cane industry.

A second agreement was signed in 2005 between the town of Le Port and Durban Municipality; one of its main aims was to set up an observatory of Indian Ocean towns and ports.

The action plan for this decentralised cooperation targets five priority sectors:

  • - sustainable rural development and agronomic research
  • - university and technical exchanges
  • - economic development
  • - research and development
  • - the environment.

It is important here to emphasise the vital role played by the Réunion/South Africa Association, founded to initiate decentralised cooperation with South Africa. The association is actively involved in developing economic, cultural and human exchanges, and in making Réunion better known to its South African partners.