Note from the Editors

With the South African legal landscape currently shifting – instability in the mining sector, for one, causing a rethink of the government’s transformation policy and forcing serious introspection on the very nature of the rule of law in the country – it is, for some, hard to justify an even more general discussion of what is happening in Africa on a regional level. Inkundla hopes to use this year’s journal as a platform for a different train of thought: South Africans must look ‘outward’ to its regional framework to better locate itself for any discussion on where South Africa is headed. This is because, while South Africans might be gradually fine-tuning domestic issues, the world is certainly looking to the continent, in its entirety, as the final frontier. The late South African poet Ingoapele Madingoane took this outward-looking perspective: in the last lines of his iconic poem, Africa, My beginning, Africa My Ending, he wrote: “…Africa my beginning/ And Africa my ending/ Lets do something.â€

It is our pleasure to present the second edition of Inkundla, which has an international law theme, examining pressing issues of international law in South Africa, on the African continent, and beyond. The first article critically considers the African Court of Justice and Human Rights, and in particular the proposed merger of the Africa Union’s two dispute resolution bodies. The second article discusses the African Union’s complex relationship with the United Nations and provides realpolitik insights into what we can expect from this relationship in the future. The third article looks at the debate over the use of force and the responsibility to protect – a topic of vital importance for a number of African states – focusing on the situation in Syria, Africa’s neighbour to the north. This is followed by an analysis of the challenges in addressing rape in the Democratic Republic of Congo. The final piece takes the domestic sphere as its perspectival locus, and looks at new developments in the prosecution of international crimes in South Africa.

The editorial team feels that a consideration of these issues is vital to a richer appreciation of South Africa’s role on the continent in the future. An integrated understanding of national and regional issues provides a solid foundation for further transforming South Africa’s nascent state; a task incompatible with an isolationist view. While there is much to be said for concentrating on South African development, no citizen of this country should forget that he or she lives on a continent with millions of other aspiring and ambitious people, also seeking new solutions to our continent’s problems; and it is this collective aspiration that provides strength. While Africa faces a myriad of problems it should be remembered that there is no dearth in the array of African legal thought currently surfacing, and it is from these rich intellectual productions that ideas on how to move this continent forward will emerge.

This edition marks a shift from print publication to online publication - using the Inkundla website at This shift was made, inter alia, in order to reduce Inkundla’s environmental footprint. Society must take action to mitigate the risk of catastrophic climate change. Online publication signifies Inkundla’s effort to fulfill this social responsibility. Furthermore, in this digital era, a large amount of research is done online. It is our hope that, with online publication, Inkundla will keep abreast with current research methods; that Inkundla and its contributing author’s will gain global exposure; and that the journal will be more accessible for legal practitioners, academicians, students and others.

We would like to thank Ms. Franziska Sucker for her guidance in the compilation of this edition; Ms. Mariya Badeva-Bright for all her help with our website; the Wits Law School for its continuous support; and the students of the Wits Law School who sent us their work for publication and continue to produce quality pieces of writing which makes our selection process a lot more difficult but it is a welcome problem.


Edwin Berman

Robert Freeman

Fatima Henwood

Ernest Mate

Published: 2013-05-01