Jonathan Klaaren

Viewed from the Past, the Future of South African Citizenship

The formation of South African citizenship between 1897 and 1937 may be explained through the process of bureaucratic regulation of the mobility of three populations: European, African, and Asian. The origins of South African laws of immigration and nationality are found in this period. Identifying first the baseline concept of South African citizenship, this article describes and analyses three manifestations of current ferment regarding such citizenship. In each of the branches of government, there is contestation regarding the currently dominant vision of South African citizenship. Most prominently, there is a contest between official residence citizenship and republication citizenship in the jurisprudence of the Constitutional Court. In conclusion, the article explores the potential for further movement towards denizenship within the South African migration regime.

The Nicholson Judgment: An Exercise in Law and Politics

The Nicholson judgment was clearly a precipitating factor in the resignation of former South African President Thabo Mbeki in 2008. Engaging with the judgment in its own terms, this note first puts forward a best legal interpretation of the judgment, covering the doctrines of prosecutorial independence and legitimate expectations. It then identifies the degree to which the comment in the judgment may be termed politically activist. In the authors’ view, Nicholson tackled political issues in his judgment that he need not have: in particular, allegations of executive interference in the independence of the prosecutions authority. Assuming that Nicholson J’s text may be read as an attempt to bolster the legitimacy of the judiciary, the note explores whether it succeeds on those terms and concludes that the judgment is ultimately an example of failed dramatic art.

African corporate lawyering and globalization

Abstract Influenced by processes of globalization and localization, many fields of social and commercial practice – including legal services – across Africa are undergoing rapid transformation. It should come as no surprise that these processes of globalization and transformation include the ongoing transformation of corporate lawyering. Lawyers from Johannesburg to Algiers – not to mention Khartoum and Ouagadougou – are experiencing and participating in rapid global change in their profession and everyday work. This article identifies some of the questions and issues that emerge from this process, as well as providing a vignette of the South African corporate legal sector and tentatively outlining the emergence of an African corporate lawyering field. It does so in order to propose a research agenda into the trends and potential pathways of growth in this field. It does so in four steps, moving from a theoretical frame to one of the Global South to a portrait of the South African jurisdiction and ending with an agenda for African corporate lawyering.

Current Demographics in Large Corporate Law Firms in South Africa

By contrast with the judges and the advocates, the issue of race and gender representivity in the attorneys segment of the legal profession generally and in large corporate law firms specifically has not received significant attention, in part due to the lack of accurate statistics and a thin research tradition. Addressing the gap, a 2013 survey investigated the demographics of legal professionals in large corporate law firms in South Africa. The chief finding of the survey is that South Africa’s major corporate law firms are still dominated by white men, especially in their upper echelons. Further, nearly half of the African women professionally employed in large corporate law firms (48.1%) are candidate attorneys, which is to say non-admitted legal professionals. These findings are consistent with the few earlier studies that have been conducted and indicate the need for further detailed research into the social dynamics of the African legal profession.

Constitutional Court Statistics for the 2004 term : notes and comments

This note provides some descriptive statistics on the work of the Constitutional Court in the past year, organised in eight tables. A ninth table looks at the expected terms of the Judges of the Court. The method of constructing each table is given in the text following the table. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of the SAJHR. We cover only cases in which the Court produced a written judgment. Applications that were considered in chambers and then dismissed on either substantive or procedural grounds, without a judgment being given, are excluded. These applications do not contribute to the statistical analyses that follow, hence their exclusion. It would furthermore distort the patterns that emerge from the cases in which judgments were given should these applications be included. In 2004:

Constitutional court statistics for the 2003 term

This note provides some descriptive statistics on the work of the Constitutional Court in the past year, organised in eight tables. A ninth table looks at the expected terms of the judges of the Court. The method of constructing each table is given in the text following the table. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of this journal.

Constitutional Court statistics for the 2002 term

This note provides some descriptive statistics on the work of the Constitutional Court in the past year, organised in eight tables. A ninth table looks at the expected terms of the Judges of the Court. The method of constructing each table is given in the text following the table. The objectives and methods of this annual set of statistics are more fully laid out in the 1995 edition and subsequent editions of this Journal. We cover only cases in which the Court produced a written judgment. This consequently excludes a relatively large number of applications that were considered in chambers and then dismissed on procedural or substantive grounds, without a judgment being given. These applications have not been included because they do not contribute to the statistical analyses that follow and, indeed, would distort the patterns that emerge from the cases in which judgments were given. It should be noted that many of the cases that were decided in 2002 were received by the Court in 2000 and 2001 and are listed as cases from those years in the Court’s database. In 2002:

Towards Republican Citizenship: A Reflection on the Jurisprudence of Former Chief Justice Sandile Ngcobo

In modern scholarship, the analysis and use of the term ‘citizenship’ takes many forms and engages many disciplines and intellectual traditions. Ngcobo CJ has been at the centre of a fundamental debate over the meaning of citizenship that has developed in South Africa’s post-apartheid constitutional democracy. Drawing on previous research, the article briefly sketches what might be termed the republican tradition of democratic thought. It then provides an analysis of several significant cases in which Ngcobo CJ participated and the resolution of which he influenced. The article argues that consistent with and indeed constructive of an emerging republican tradition of democratic constitutionalism in South Africa, Ngcobo’s jurisprudential contributions recognise and articulate the public-spiritedness that the Republic of South Africa demands of each of its citizens.

Laying the table: the role of business in establishing competition law and policy in South Africa

ABSTRACT Organised business played a significant role in the formal policy processes developing the competition regime after apartheid up to and including the drafting of South Africa’s competition law. The social organisation of business and its participation in formal policy processes were shifting and changing rapidly. Exploring several published accounts of the drafters of South Africa’s first democratic competition law and policy framework reveals the narrative context for the politics of the regime. The process of negotiating and drafting this legislation took place both in National Economic Development and Labour Council (a formal tripartite negotiating organisation) where business was influential, and in Parliament. Big business pursued its interests in competition policy and achieved significant results during this time. The current period differs from the post-apartheid period in light of the much less prominent role of conglomerates in the South African economy, the rise of organised black business structures, and the increasing importance of Parliament as opposed to the NEDLAC.

Human Rights: Legal Aspects

Human rights can be viewed from legal and sociolegal perspectives. From a legal perspective, human rights are the rights derived from the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and other human rights instruments; they are enforced on both international and domestic levels. Sociolegal perspectives, embedded within the disciplines of history, sociology, anthropology, and international relations, instruct that human rights are not constrained only by law; they have their own history, sociology, social life, and transnational activist networks. The issue may be posed whether the field of human rights has moved beyond a topic of interdisciplinary research to become a distinct discipline.