Browsing by Author "Dlamini, Charles Robinson Mandlenkosi"

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    Conflict or co-operation : an examination of the South African Constitution and the church
    (2003) Dlamini, Charles Robinson Mandlenkosi; Pitchers, A.L.
    The purpose this thesis is an examination of the impact of the current South African Constitution on the church. The question is whether there is conflict or co-operation between certain provisions of the Constitution and the church as reflected in the word of scripture. The reason for this is that certain sectors of the church expected a Christian rather than a secular state to be established in the new political and constitutional dispensation. Some Christians were also not pleased with the protection in the Constitution of certain practices which are in conflict with Christian values and principles. Some of these are not provided for in the Constitution but in legislation. These include, inter alia, abortion, homeosexuality and pornography. This criticism is based on a misapprehension of the fact that both the secular authorities and the church or alternatively the political kingdom and the kingdom of God are ordained by God. They are mandated by God to perform certain f unctions. The state is representing God in matters of governance, good order justice and peace in the country. God holds it responsible for this. The church is supposed to be responsible for the spiritual and moral life of the people. It has to propagate the gospel of the salvation of humankind and of the coming of the kingdom of God. It is essential that there should be separation between church and state. Not only should there be separation between church and state but there should be structural pluralism. This is so because the state is not omnicompetent and has to allow other structures like the family, the school, the church and the university to play their own roles. Because of the separation between church and state the state should not decide for individuals what to believe or what not to believe. The reason for this is that the state is not competent to decide on what is true religion. It may also manipulate religion for political reasons. This is unacceptable in a democracy. Not only should the state allow freedom of religion, but it should also allow the church or members of the church to manifest their belief by adopting certain stances on issues. Religion has a pivotal role to play and seeks to influence society as a whole. Properly understood, there is no real conflict between the Constitution and the word of scripture. The Constitution provides scope for co-operation between church and state without each taking over the function of the other. The church has more than ample opportunity for propagating the good news of the kingdom of Cod. The Constitution provides for the creation of a democratic state based on the rule of law, the independence of the judiciary, free and fair as well as regular elections, adult suffrage, a Bill of Rights policed by a fearless judiciary and a multi-party system. It also promotes openness and accountability on the part of the government These are not in conflict with Christianity. The Constitution also provides for a Bill of Rights which is regarded as a cornerstone for democracy and which protects the rights of the individuals including institutions such as the church. It also stipulates that there be equality before the law and that there should be no unfair discrimination based on the listed grounds. These are compatible with fairness and with Christianity. Christians can play an important role in clarifying the respective roles of the church and state. They can also seek to exercise a positive and constructive influence in the affairs of the country. In this way they can prove to be the real salt and light of the world.
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    Juridical analysis and critical evaluation of ilobolo in a changing Zulu society
    (1983) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Kemp, J.K.
    Four years ago I had the rare honour of being requested to be an umkhongi in three separate marriage negotiations. In the course of these negotiations I was particularly struck by the zeal with which ilobolo was demanded and by the disparity in the amounts demanded. Although I was no stranger to ilobolo, this set me thinking as to what is the significance of ilobolo in both the traditional and modern Zulu society. Here was sown the seeds that gave rise to the present research. It is a modest attempt at examining the position of ilobolo today in its historical perspective and in a society that 1s in transition. Although various contributions on ilobolo have been made by eminent authors, it is a contribution from one who has not only studied the institution but who is also part of the community that practices it. It is hoped that it will add another dimension to the existing literature on this eminent institution. The approach followed here is eminently jural and comparative although recourse is also had to the popular views owing to the limitations of the jural approach. To deviate a little: there are two mistaken assumptions which are often held in relation to a person who shows interest in the scientific study of customary law: one is that customary law is either dead or should be allowed to die natural death. Concern with it is regarded as merely an academic Exercise of little or no value; the other assumption is that interest in the systematic study of customary law lends inadvertent support to the government's policy of entrenching tribalism and of wanting the "Natives" to live according to "Native law". In answer to this the words of Ramolefe (AMR Ramolefe "Sesotho marriage, guardianship and the customary heir" in M Gluckman (ed) Ideas and procedures in African customary law (1969) 197) are particularly appropriate; "Customary law is now my devoted study, not because I willed it so, nor because I am one with those who bleat: 'Let the natives develop along their own lines; but because up in the Maluti Mountains, and in several pockets of lowland-dwellers custom is very much still ~ law and no amount of contempt for it by others can alter this fact". Customary law is still very much alive. Even blacks who are westernized are in varying degrees subject to customary law. The institution of ilobolo is ample evidence of this. Even if a black marries by civil rights that marriage will not in all respects produce consequences similar to those for a marriage of a white person. On all these blacks need legal advice. History has proved that a legal system of a people does not become extinguished by acculturation. Although many institutions may die and decay, others are resilient and the society can only build its legal system on them. The present Roman-Dutch law which is the common~ law of South Africa is a classic example. It is a synthesis of two legal systems: Roman law and Germanic customary law. Their synthesis was precipitated by the hard labours of the jurists of the Middle Ages, the Glossators and Post-Glossators. It is the duty of lawyers to facilitate a new legal dispensation for Southern Africa. What is more, customary law is changing. It is the duty of the lawyers to give effect in the law to these changes by giving decisions that will update customary law and by drafting legislation to modify the existing law. This obviously requires a scientific study of customary law. It was in this spirit that the present research was undertaken.
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    Proof beyond a reasonable doubt
    (1998) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Milton, J.R.L.
    Proof beyond a reasonable doubt is the standard of proof that is applied in criminal cases. The burden of proving the guilt of the accused in this manner rests on the state, and does not shift to the accused. This is in contrast to the evidential burden which may shift to the accused to rebut a case against him or her. There have, however, been statutory exceptions where the burden shifted to the accused. But this has been changed by the Constitution. The rule has ideological and philosophical underpinnings. Criminal law is an awe-inspiring aspect of the law the enforcement of which could lead to the deprivation of the liberty of a person. Personal liberty in Western society is a cherished value so that its deprivation should result if the state has proved beyond a reasonable doubt that the accused is guilty. This is often concretised in the saying that it is better for a hundred guilty persons to go free than that one innocent person be found guilty. The rule that the state has to prove the guilt of the accused beyond a reasonable doubt originated from English law during the eighteenth century and it was aimed at protecting the individual against the abuse of state power. Although this is a long-standing rule, there has been no clear definition of this rule either in English law or South African law. The duty to prove the guilt of the accused beyond a reasonable doubt extends to every element of the offence. There are instances where this may not be the case. These are cases where judicial notice is taken of certain facts or where there is strict liability and it is therefore not necessary to prove the existence of mens rea especially in the form of intention. Although these do not completely dispense with the requirement of proving the guilt of the accused, they result in the reduction of this burden. In a number of legislative enactments, in the past the burden of proof was shifted to the accused through the use of presumptions. Not all presumptions had this effect but only those where the accused was presumed guilty because of the existence of certain facts and hadto prove his or her innocence beyond a reasonable doubt. This is called the reverse onus. The Constitutional Court decided that these were in conflict with the provisions of sections 25 and 35 of the interim and final Constitutions respectively which, inter alia, provide for the right to silence and the presumption of innocence. Consequently these have been declared invalid as being unconstitutional. In this way the Constitution has been interpreted to affirm the core democratic values of liberty, equality and human dignity. Although the standard of proof beyond a reasonable doubt has been used, it has not been clearly defined. Proof beyond a reasonable doubt can be regarded as proof which should convince a reasonable fact finder after considering all the relevant evidence that the accused is guilty of the offence with which he is charged. This proof must be based on evidence and not merely on intuition or belief otherwise it is not a standard at all.
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    The protection of human rights in Africa
    (1989) Dlamini, Charles Robinson Mandlenkosi; Mchunu, E.S.
    Human rights are rights which a person has or should have by virtue of his being a human being. This implies that a state should allow a certain measure of individual liberty- Although the idea of human rights has become accepted in the international community, the observance of human rights varies from place to place. On the attainment of independence most of the African states adopted constitutions enshrining bills of rights justiciable by the courts. Despite these bills of rights, many of the African states have been guilty of gross and systematic violation of human rights. This can be ascribed to social economic and political factors. These largely stem from the colonial background from which these states emerged. Colonial rule was extremely authoritarian and did not provide encouragement for the protection of human rights. This tradition was extended to the post-independence era. Although the independence constitutions provided far the protection of human rights, these constitutions were largely imposed on the independent states and consequently lacked legitimacy. The Organization of African Unity initially did not have the protection of human rights as one of its major objects largely because of the prevailing political circumstances at the time of its establishment. When member states violated human rights the OAU raised the defence of non-interference in the domestic affairs of a sovereign state. In this way African states applied double standards when it comes to the violation of human rights especially because they were critical of the racist policies of the South African government. The adoption of the Charter of Human and Peoples' Rights in 1981 by the OAU has provided a regional mechanism for the promotion of human rights in Africa. Despite its limitations this charter will contribute towards the observance of human rights in Africa. Moreover, it implies an end to the non-interference defence. The African experience provides a significant lesson for the bill-of-rights debate in South Africa.
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    The role of chiefs in the administration of justice in KwaZulu
    (1988) Dlamini, Charles Robinson Mandlenkosi; Labuschagne, J.M.T.
    Although justice, the indispensable attribute whereby law facilitates social stability, is difficult to define precisely, every society has a certain conception of justice based on the values of that society. The most popular idea has been that of equality of treatment which in the administration of justice involves treating like cases alike. This concept of justice is based on the Gesellschaft ideals and values. The idea of justice in traditional black society was modelled on Gemeinschaft ideas which emphasize more the peacekeeping function of law rather than due process and the creation of a general rule of precedent. Various societies have developed certain procedural safeguards and principles to ensure the doing of minimum justice by judicial tribunals. These vary from society to society as a result of sociological and political developments in each society. The chiefs' courts in KwaZulu represent the traditional judicial machinery. Although they have been influenced by western ideas and procedures, their mode of operation remains substantially unaltered. Most of the procedural guarantees evolved in the west, largely do not apply to these courts owing mainly to the nature of the society from which they developed. Chiefs generally do not act as individuals in the administration of justice, but are assisted by their councilors on whose wisdom and opinions they rely for judgment. These councilors have the liberty not only to cross-examine witnesses but also to ensure that the parties are fairly treated. restraints irregularities do occur. Despite these traditional Notwithstanding the irregularities chiefs' courts remain largely popular in Zulu society ,because they provide inexpensive, informal, flexible and expeditious access to justice. The procedural and evidentiary approaches emphasize reconciliation and finding a mutually acceptable solution to the dispute, desirable goals even in modern society. Regulations have been introduced which have modified the traditional procedural approach. It is nonetheless stipulated that the procedure should accord with the customary law of the tribe concerned. Some of these rules modify customary law and others are contrary to it. In a number of cases chiefs do not comply with these regulations. Although for some chiefs' courts and their method of operation are unacceptable as they compare unfavorably with western courts, these are in the minority in KwaZulu. Chief's courts therefore still enjoy a measure of legitimacy so that abolishing them without providing a viable substitute would be premature. Similar attempts elsewhere in Africa were unsuccessful. Small claims courts are not yet available in KwaZulu and their functions are limited.