Research Articles (Public Law)

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Browsing Research Articles (Public Law) by Author "Du Plessis, L. M."

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    Observations on the (un-) constitutionalty of section 118(3) of the local government: systems act 32 of 2000
    (Juta Law Publishing, 2006-03) Du Plessis, L. M.
    INTRODUCTION: Can section 118(3) of the Local Government: Municipal Systems Act1 (‘‘the act’’) withstand constitutional scrutiny – in terms of section 25(1) of the Constitution,2 to be more exact? The Constitutional Court – in Mkontwana v Nelson Mandela Metropolitan Municipality; Bissett v Buffalo City Municipality; Transfer Rights Action Campaign v MEC for Local Government and Housing, Gauteng3 (‘‘the Mkontwana case/ judgement’’) – left this question open, expressly and deliberately.4 In the same breath the court found that section 118(1) of the act, the operational stable companion of section 118(3), is not unconstitutional. It has therefore become significant to reflect on the likely constitutional fate of section 118(3) which, at present and at best, can but be guesstimated.
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    Oor hoe juriste werk met tekste ... en tekste met hulle : enkele gedagtes oor die postmodernisering van Christelik-reformatoriese regsdenke
    (Scriber Editorial Systems, 2000) Du Plessis, L. M.
    In this article it is argued that postmodern, Christian-Reformational legal scholarship is possible, in principle, and indeed necessary. Reformational legal scholars are enjoined to account for the implications of the linguistic turn in legal interpretation, namely that meaning is not discovered in a text, but is made in dealing with the text. The meaning of “text” in the light of postmodern insights that traverse the notion of law-texts as autonomous bearers of meaning, is compared with traditional lexicographic notions of the signifier “text". According to the former insights a law-text is a signifier whose possible meanings in specific situations are generated as a result of a dynamic and complex interplay between the text and multifarious other signifiers. A basic distinction is made between narrative and normative lawtexts and the relevance of this distinction is explained.
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    ‘‘Subsidiarity’’: What's in the name for constitutional interpretation and adjudication?
    (Juta Law Publishing, 2006-02) Du Plessis, L. M.
    INTRODUCTION: ‘‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.’’ This seemingly unspectacular dictum comes from the minority judgment in the controversial Mhlungu case, one of the earliest judgments of the South African Constitutional Court. Though it is not often cited (both in the literature and the case law) the said dictum seems to articulate a ‘‘principle’’ of considerable significance. The purpose of this article is to show that this dictum and the ‘‘principle’’ to which it refers are commensurate with and indeed a verbalisation of the notion of subsidiarity which, subject to caveats, has a constructive role to play in constitutional interpretation and adjudication. It will moreover be argued that (and shown why) it is desirable to name (and thereby explicitly recognise) the hitherto unnamed ‘‘Mhlungu principle’’ as an instance of adjudicative subsidiarity, and to distinguish it from other forms of subsidiarity which are also of interpretive and adjudicative significance.