The constitutional rights of children and the Prevention of Organised Crime Act 121 of 1998

The Prevention of Organised Crime Act 121 of 1998 [POCA] embodies a serious attempt by the South African government to effectively police and curb organised crime, money laundering and criminal gang activities in South Africa. The Act provides inter alia for a range of crippling fines and for orders such as confiscation and forfeiture. Asset forfeiture and confiscation orders can affect the rights of third parties directly and indirectly in a number of ways. Young persons and children can beaffected indirectly because asset forfeiture and confiscation orders may violate the right to parental care of the dependent young persons and children of the person who is subject to the order. This brief article will investigate aspects of the protection afforded to the rights of children when such orders are made in terms of the provisions of the Prevention of Organised Crime Act.

Constitutionalism, good faith and the doctrine of specific performance: rights, duties and equitable discretion

This article will explore the European roots of the doctrine of specific performance and the influence of transformative constitutionalism on these in recent times. The question whether specific performance is available as of right (as in the civil law), or only subject to judicial discretion (as in the common law), will be investigated. The demonstrated impact of constitutional rights on contract law in the mixed system of South Africa will be contrasted with developments in English and Australian contract law, where the common-law rules are more deeply entrenched and the potential scope for human rights-based development of these is arguably smaller, though still important. The article will argue, using comparative rules on specific performance as an example, that the concept of a duty of good faith or contractual fairness is likely to play a greater role in future in all three of the countries under consideration, reducing the common/civil/mixed legal systems divide.

Expropriation of "old order" mineral rights in South Africa: the Constitutional Court has its say (twice)

The Mineral and Petroleum Resources Development Act 28 of 2002 (ZA) (MPRDA) makes provision for the conversion of so-called “old order” rights to prospecting and mining rights. The consequences of the failure of holders of old order rights to apply for (a) Conversion or (b) new rights under different circumstances were decided by the South African Constitutional Court in two decisions during 2013. These cases are discussed against the background of the nature, content and termination of old order rights. It is also discussed whether such rights were expropriated by the MPRDA and, if so, whether compensation is payable by the state.

Opting out of shareholder governance rights: a new perspective on contractual freedom in Australian corporate law

One of the classic debates in corporate law relates to whether the rules of corporate law are ar should be 'mandatory', in that companies must comply, or 'enabling' - meaning a set of default rules which companies have the choice of adopting or 'opting out' of through alternative contractual arrangements. The so-called 'mandatory/enabling' debate has been especially prominent in the United States fro numerous reasons, yet has also received some attention in Australia. That said, the extent to which companies can 'opt out' of corporate law has rarely been considered as a practical issue in Australia - particularly whether Australian companies can 'opt out' of provisions under the Corporations Act ("the Act"). However, just recently, two high-profile events in Australia have made 'opting out' of corporate law a relevant issue, especially the question of whether companies are free to 'opt out' of provisions of the Corporations Act  which provide express governance rights to shareholders. These events were Boral's constitutional amendment in 2003 to restrict the ability of shreholders to propose amendments to the company's constitution, and the contemplation and introduction of so-called 'pre-nuptial' agreements- designed to by-pass the right of shreholders to vote on removing directors in public companies. In the light of these two recent events, in this article the authors revisit the mandatory/enabling debate. However, rather than going over old ground as to whether a mandatory or enabling approach to corporate regulation is desirable, the authors approach the issue from a fresh perspective: that Australian Securitiesand Investments Commission's ("ASIC") existing relief powers under the Act should be extended to provide a means for companies to opt out of provisions containing shareholder governance rights.

Hollow avowals of human rights protection-time for an Australian federal bill of rights?

Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however, important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed - a federal bill of rights? In the course of this analysis the author makes suggestions for reform; specifically how a federal bill of rights may address the paucity of constitutional protection.

Statutory verification of water rights: the 'insuperable' difficulties of propertising water entitlements

The abolition of riparian entitlements in the early stages of colonial Australia and the vesting of these rights in the Crown represented a turning point for the evolution of private water rights. The extinguishment of common law rights connected to vested land interests and the introduction of new, unaligned statutory entitlements provided a new and fundamentally different system for the creation and regulation of private water entitlements. Unlike riparian entitlements, in the absence of express definition, statutory water entitlements may only be verified as property where such a construction is consistent with the nature and scope of the entitlement. In this respect, the statutory framework has disaggregated the propertisation of water rights from land ownership and linked the process to broader statutory interpretation principles. The shift away from institutional property has generated concerns about the interpretive approaches appropriate for the verification of legislative water entitlements. This article examines the existing interpretive approaches and argues that the blurring of the propertisation process with the separate issue of whether any change or modification of such water rights attracts s 51(xxxi) of the Commonwealth Constitution has produced a situation where core property indicia is increasingly overshadowed by legislative defeasibility. In the recent High Court decision of ICM Agriculture Pty Ltd v Commonwealth, the focus of the majority judgements upon the inherent susceptibility of legislative entitlements to variation or extinguishment acted as a catalyst for the non-propertisation of statutory bore water licences in New South Wales. The emphasis the majority judgements gave to legislative defeasibility precluded a full and balanced assessment of other highly relevant property indicia, in particular the expectation interests of the holders. Conflating property and constitutional evaluation in this way is inappropriate in an era where entitlements to natural resource interests are increasingly statute based and the verification process has significant social and economic repercussions. Determining whether a statutory entitlement constitutes property requires a careful balancing of legislative intent, social and environmental context and individual expectation and the vicissitudes of a regulatory context should not eclipse this process.

An entrenched bill of rights : a protection for the rights of minorities

This paper is concerned with the question of whether Australia would be better served by the inclusion of an entrenched Bill of Rights in the Constitution of the Commonwealth of Australia. In particular, attention will focus on the abuses of minorities that are all but certain to arise in any society that is based on majoritarian rule. This paper will also examine the question of whether an entrenched Bill of Rights would serve as an effective safeguard against such abuses, especially where the rights of unpopular minorities are involved. The analysis to follow is undertaken against the backdrop of the efficacy, or the lack thereof, of the Constitution of the United States in preventing such abuses, and particularly that portion of the American Constitution that is known as the Bill of Rights.