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Die rol van die staat in die geloofslewens van burgers is sedert die ontstaan van die moderne staat 'n voortdurende kwessie. Dit is onvermydelik omdat die reg in die hande van die staat 'n instrument kan wees om godsdiensvryheid te beperk, wat kan meebring dat gelowiges voor die keuse geplaas kan word om, in gehoorsaamheid aan hul gewetens, onregmatig te handel. Geen fundamentele reg geld absoluut nie, maar die vraag ontstaan of staatowerhede tydens krisistye meer perke op burgers se godsdiensregte mag plaas as wat andersinds die geval sou wees? Hierdie vraag het weer na vore gekom tydens die regering se hantering van die pandemiekrisis van 2020. In hierdie bydrae word die grondwetlike verlening en die aard van die reg op godsdiensvryheid in Suid-Afrika eers kortliks behandel en dan in verband gebring met die onderskeie verskynsels van noodtoestand, krygswet en ramptoestand. Hoe die reg op godsdiensvryheid ingevolge die Grondwet beperk mag word, is bepalend vir die beoordeling van die regmatigheid van die uitwerking van die rampbestuursreëlings van 2020 op godsdiensvryheid. Hierdie maatreëls was in verskeie opsigte buitengewoon, en die regs-geldigheid daarvan, of van aspekte daarvan, is gevolglik ook uit verskeie perspektiewe betwis, wat interessante implikasies het. Gesien teen die agtergrond van die onmoontlikheid om aanspraak op die primaat van die reg met die prioriteit van religieuse oortuigings te versoen, des te meer nog te midde van religieuse pluraliteit, word bepaalde beginsels ter oorweging aan die hand gedoen. The role of the state in the religious life of citizens has been a constant issue since the emergence of the modern state. This is inevitable because, in the hands of the state, the law may be an instrument to limit religious freedom, causing believers to be confronted with the choice of either acting lawfully or obeying their conscience. No fundamental right is absolute, but at issue is whether state authorities should, when faced with a crisis, utilise their power to impose more restrictions than would normally be the case on citizens'religious rights. In this regard, the South African government's apparent disregard for citizens' rights during the pandemic crisis of2020, caused widespread concern. Exactly what "religious freedom" entails, is not evident. Section 15(1) ofthe Constitution provides a particularly dense, and therefore complex, characterisation: "Everyone has the right to freedom of conscience, religion, thought, belief and opinion." "Religion" may, on the one hand, be understood in a broad sense (including mysticism and mental phenomena such as some forms of Confucianism, Taoism and Buddhism, and non-devotional ontological views such as atheism and agnosticism); and, on the other, be regarded more narrowly, indicating attitudes or systems devoted to a single or multiple deities. Furthermore, "belief may signify more than merely a view or attitude, but also refer to religious conviction. Religious freedom may be perceived as the first human right that received legal recognition as a fundamental right, historically dating back at least to the time of the Peace Treaty of Westphalia of 1648. The notions of a "state of emergency" and the related instrument of "martial law" have deep and controversial roots in South African history. This explains the safeguards built into section 37 ofthe Constitution, which requires parliamentary oversight by the executive ofthe declaration and conduct of a state of emergency. Theoretically, the phrase salus reipublicae/ populi suprema lex has been associated with circumstances purportedly providing justification for the state to act in self-defence in times of war and civil unrest. However, during the pandemic crisis of 2020, the government elected not to declare a state of emergency, as was the case in many other countries, but instead to muster extraordinary emergency powers based on an ordinary parliamentary statute, the Disaster Management Act 57 of2002. However, the structures provided for in this Act were selectively used, and decision making was entrusted to a nebulous body with a rather revolutionary title, namely the "National Coronavirus Command Council", established without a clear legal framework. This body largely overlapped in structure and function with the cabinet and functioned in secrecy. Ominously, the president publicly associated the measures taken to deal with the pandemic and its economic consequences with "war". The manner in which religious freedom may be limited constitutionally determines the assessment of the lawfulness of the effects of the disaster management arrangements on religious rights. Section 15(2) ofthe Constitution, which deals with the conditions pertaining to religious observances in state and state-aided institutions could not be realised, because the "lockdown" regulations prohibited religious gatherings in "recognized places ofworship" such as churches, synagogues, mosques and temples. These regulations and the concomitant actions were, in various respects, extraordinary and the lawfulness thereof, or of some aspects thereof, were consequently challenged from different perspectives, with interesting implications. In this regard, especially the "limitations clause" (section 36 of the Constitution) has to be noted. In addition, the dictum of the Constitutional Court in 2000 in the Christian Education case became particularly apposite: "Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by s 36 and not the rigid one of strict scrutiny. " The "interpretation clause" of the Constitution (section 39), which requires the promotion of the values that underlie an open and democratic society based on human dignity, equality and freedom, might also have come into play, but its vagueness has thus far prevented the courts to provide much guidance for the application of this provision. When the prohibition of religious gatherings was challenged before the Gauteng High Court (the Mohamed case), it was found to have been done lawfully in the name of the greater good, and that "[e]very citizen of this country needs to play his/her part in stemming the tide of what can only be regarded as an insidious and relentless pandemic". Seen against the background of the inherent incompatibility of insistence on the primacy of the law with regard to prioritising religious convictions, especially given the religious plurality prevalent in South African society, it is submitted that some general principles apply.

This contribution is a review of the research handbook in comparative constitutional law, titled Comparative Constitutional Theory edited by Gary Jacobsohn and Miguel Schor. It was published in 2018 by Edward Elgar Publishing. Every law library worthy of the name should acquire it for the benefit of constitutional scholars and advanced students of constitutional comparison.

This contribution reviews the book by Günter Frankenberg titled Comparative Constitutional Studies – Between Magic and Deceit published by Edward Elgar Publishing in 2018.

This is a compact review and analysis of the state of equality law in South Africa . Specific reference is made to what has been called "remedial" or "restitutionary" equality. From the analysis it appears that current equality law shows certain imbalances that are difficult to reconcile with the provisions of the Constitution. To point out shortcomings in equality law which is well intended to resolve the burning problems of inequality, can easily be misunderstood in the contemporary circumstances as a reactionary resistance against a necessary process of a justifiable drive for equality. Such is certainly not the purpose of this review. The intention is however to argue the position that striving for equality must be a balanced process in order to ensure that the boundaries of equality themselves are not transgressed, since that would contradict the very essence of equality. In the first section the constitutional provisions on equality are briefly described. It is noted that the Constitution does not establish "a right to equality", but that it consistently deals with equality as a value. The wording of section 9 does however justify a term such as "the equality right." Next the approach of the judiciary to equality, in which the analytical steps of interpretation that were developed by the Constitutional Court are set out, is reviewed with special mention of the role that has been allocated to the value of human dignity in the interpretation and application of equality rights. In the third section an answer is sought to the question what "equality" means. As opposed to the choice of equality jurisprudence in the USA for a formal notion of equality, the South African courts operate with the concept of substantive equality. It is in this context that mention is made of "remedial or restitutionary equality". Equality is given a meaning which implies action. This is supported partly by the wording of sections 1 and 9(2) of the Constitution, but not by the formulation of sections 7(1), 9(1), 36(1) or 39(1). The only constitutional provision which imparts meaning directly to the notion of equality, is section 9(2), providing that "equality includes the full and equal enjoyment of all rights and freedoms." This gives meaning to equality as a value, to the equality rights and to equality as a description in the Constitution of the nature of the society that is being striven for. The complexity and multi-faceted nature of equality does not allow for a simplistic approach to its meaning. The boundary between equality and inequality is quite sharp and the mobilization of equality for the achievement of political, ideological or pragmatic goals can readily lead to inequality and injustice. Against this background the most important pieces of equality legislation, the Employment Equity Act, 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, are discussed. These Acts were adopted "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination" in terms of section 9(2) of the Constitution. Both however contain provisions that go beyond the scope of the Constitution by e.g. the addition of grounds upon which unfair discrimination is prohibited and by excluding affirmative action measures from the meaning of unfair discrimination. The Constitution can not be interpreted in a manner that would allow unfair discrimination for any purpose. The legislation however seem to disregard the possibility of affirmative action becoming discriminatory in itself. This resonates with the view that "substantive equality" allows for measures "that favour relatively disadvantaged groups at the expense of those who are relatively well off". It is however submitted that not the current ideology behind affirmative action, nor one's preferred understanding of equality or the analytical model that is being used, can determine what the justifiable content of equality law should be: the question is rather what may be justified in law, specifically under the Constitution. The form in which elements of the equality legislation are cast, viz. guidelines for its application and illustrative lists of unfair practices, harbours the danger that uncareful interpreters of the law could be seduced to give precedence to the legislation above the Constitution. This would result in a persecutory application of equality law in terms of examples in stead of the constructive and principled approach required by the Constitution. The equality laws also attempt to extend the list of grounds contained in section 9(3) of the Constitution upon which discrimination is presumed to be unfair by the addition of HIV status, family responsibility, political opinion, socio-economic status, nationality and family status. The constitutionality of amending section 9(3) in this manner by means of ordinary legislation is suspect, especially if it is considered that differentiation which is justifiable under the Constitution may be rendered unfair discrimination under ordinary legislation. It is concluded that an emphasis on only the restitutionary element causes a conceptual tension to occur within the multi-faceted notion of equality. This can not be explained only in terms of the distinction between formal and substantive equality, since an over-emphasis of restitution will inevitably bring about imbalances in the outcome of equality actions, i.e. within the framework of striving for substantive equality. Some commentators, courts and the legislature tend to attempt to improve on the Constitution insofar as the achievement of equality is concerned. It is submitted that such attempts are unnecessary, since the Constitution makes sufficient provision for the restitutionary process while the balance of a comprehensive notion of equality is maintained in the form of equality as core value. The limitation of the concept of equality to restitutionary equality will unjustifiably impoverish and partially neutralize the constitutional text. Lessons must in this regard be learnt from the pre-constitutional errors of positivistic legal interpretation.

The Preamble and Chapter 1 This contribution is intended to be the first installment of a systematic interpretation of the Constitution of the Republic of South Africa 1996. Due to the foundational and repetitive reference in the text to values, regard must constantly be had to those values when this Constitution is interpreted. Even though the preamble does not contain positive norms, is an important interpretive source of the foundations of the Constitution. An important deviation from the preamble of the 1993 Constitution, is that the term Rechtsstaat ("constitutional state") is not employed. The introduction of this notion in South African law and its meaning in general is described. With reference to relevant dicta in recent constitutional cases, the Constitutional Principles in terms of which the 1996 Constitution was formulated and the text of the Constitution itself, it is argued that this is essentially a Rechtsstaat Constitution, but that the divergence in the range of constitutional values creates the danger of the constitutional state floundering in the waters of the social state. Section 1, being the foundational provision, is not unamendable, but it is very tightly entrenched. The most profound values of the Constitution are set out in this compact formulation. The question is inevitably raised whether, where values have to compete for precedence in concrete circumstances, a hierarchy of values must be construed. An analysis of section 1 in the context of other relevant provisions of the Constitution reveals that human dignity is the primary nuclear value of the Constitution, supported by equality and freedom. Democracy, supremacy of the Constitution and the rule of law are structural and procedural values of the Constitution subordinate to the nuclear values and non-racialism and non-sexism are derived values. How it is possible for a constitution to be superior law, as section 2 provides regarding the 1996 Constitution, is analysed against the background of the social contract theory. The weaknesses of this theory are exposed and it is argued that the force external to the Constitution that guarantees its primacy, is its practical legitimacy, i.e. sufficient support or acceptance of the authority of the Constitution by the citizenry. Section 2 is phrased in strong terms and means that no juridically relevant conduct, be it of a private or public law nature, can escape the test of constitutionality. In the interpretation of section 3 the nature of citizenship and nationality is analysed with reference to international authorities and definitions of these concepts are developed. The legal implications of citizenship in the context of the Constitution are set out and the historical context of citizenship having been used in pre-constitutional times as an instrument for creating separate ethnic states, is described. The current post modern tendency in places to devalue citizenship is contrasted with the importance being attached to the notion in South Africa in the context of nation building and the employment of expatriates. Regarding sections 4 and 5 the formal regulation of the national anthem and national flag is described. The national anthem may be amended by presidential proclamation, but changes to the national flag require an amendment of the Constitution. Section 6, which deals with the complex language matter, protects linguistic diversity rather than the status of any languages. The Constitutional Court has determined that, although no express provision to this effect exists, individuals are entitled to use the language of their choice in their dealings and communications with the government. The state is required to promote "the indigenous languages of our people." This is interpreted to include the nine official indigenous African languages, Afrikaans, Khoi, Nama and San. In the determination of language policies Municipal Councils are required to take the language usage and preferences of the inhabitants into account and in the national and provincial at least two official languages must be used. Essential facts regarding language usage, demographic distribution, etc. must be taken into consideration for the determination of a language policy to conform to the Constitution.

This contribution reviews the book entitled Against the New Constitutionalism authored by Tamas Gyorfi. He challenges the pivotal role given to judges in constitutional adjudication.

"Transformasie" word nie in wetgewing of die Grondwet omskryf nie, maar die beleids-dokumente van die regering en die ANC beklemtoon dit sterk as doelwit. Die motivering vir transformasie word in die konteks van die "National Democratic Revolution" onverbloemd op grond van Marxisties-Leninistiese denke gemotiveer. Hoewel dit ongetwyfeld nie "polities korrek" is om die voortgesette benutting van die kommunistiese taal waarvan die ANC se beleidsdokumente deurdrenk is, te bevraagteken nie, kan ook nie eenvoudig aanvaar word dat dit maar net 'n leë woordespel is nie. In sowel die 1993- en 1996-weergawes van die Grondwet word edele oogmerke ter ondersteuning van fundamentele sosiale en ekonomiese verandering gestel, wat - indien dit verwerklik sou kon word - die komplekse en gekonflikteerde Suid-Afrikaanse samelewing kan omskep in n stabiele burgery met gemeenskaplike verwagtinge van sosiale geregtigheid en stabiliteit. Die huidige regswetenskaplike behandeling van die transformasiebegrip dra nie veel by tot die verheldering van die betekenis daarvan nie. Die wetgewing en beleidsdokumente waarin daar sprake is van transformasie, voorsien ook nie definisies nie en die howe se vertolking daarvan is nie eenduidig nie. Daardeur is die begrip blootgestel aan misbruik vir ideologiese doeleindes, wat die belofte van mislukking inhou wanneer die oorblywende hulpbronne uitgeput is. Onomskrewe transformasie word ook vir die universiteitswese voorgeskryf, en die jongste wysiging van die betrokke wetgewing beoog om aan die Minister die gesag te gee om eensydig "transformasiedoelwitte" aan universiteite voor te skryf en af te dwing. 'n Verandering van die heersende magspatrone wat bevryding van die NDR kan meebring, kan die behoud en positiewe uitbou van die oorblywende eilande van uitnemendheid in die hoëronderwyssektor meebring.

On 13 August 2011 Deputy Chief Justice Dikgang Moseneke delivered the keynote address at the Annual General Conference of the South African Chapter of the International Association of Women Judges held on the Potchefstroom Campus of the North-West University. We are pleased to open this edition with this address in which he concluded: "We need judges who are needs driven and who are determined to vindicate rights of aggrieved litigants impartially and without fear or favour. That deep instinct of fairness which seems to abound in women would be a great asset to our judiciary."

This edition, one of the most voluminous to date, opens with an oratio by IT Cohen Professor of International Law and Human Rights, Emory University School of Law, Johan van der Vyver. The paper was delivered in the HL Swanepoel series of lectures on 26 May in Potchefstroom. In a well documented paper covering historical perspectives on the right to self-determination, the definition thereof and limitations thereupon, Van der Vyver concludes that the "[d]rafters of the South African Constitution rejected segregation of rival ethnic, religious and linguistic communities, as well as the promotion of cultural, religious or linguistic homogeneity within our nation, as a means of counteracting group-related tensions in the country's social construct. . . . The new constitutional dispensation accordingly seeks to promote pride in one's group identities." He also points out that "[p]luralism, tolerance and broadmindedness have been singled out by the European Court of Human Rights as indispensable components of a democratic society." A link to video material of the lecture is also included.

This issue contains various contributions on the themes of traditional African culture, the law relating to children and juveniles, the state's social responsibilities, labour law and one on legal education. In August 2011 Advocate Joyce Maluleke, Director in the Gender Directorate of the South African Department of Justice and Constitutional Development addressed the Annual General Conference of the South African Chapter of the International Association of Women Judges held in Potchefstroom on the dangers of harmful traditional practices such as early and forced marriages, virginity testing, widow's rituals, levirate and sororate unions, female genital mutilation, breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting. Although she considers respect for tradition, culture and customs to be part of the South African identity, she argues that cultural practices should be rooted in respect for human rights, democracy and equality. We publish her paper here as an oratio.

This special volume contains contributions emanating from a colloquium held in Johannesburg on 16 November 2002 by the FACULTY OF LAW of POTCHEFSTROOM UNIVERSITY FOR CHE in collaboration with the KONRAD-ADENAUER-STIFTUNG. The theme of the colloquium was "political, socio-economic and cultural issues in constitutional adjudication". External evaluators did not review the contributions and as a result the editors of PER are not responsible for any shortcomings which might be present.

This second edition of 2006 offers an interesting range of topics, in this instance all covered by South African authors. In her analysis of the "institutions supporting constitutional democracy" established by the South African Constitution, Professor Christina Murray of the University of Cape Town argues that thethe institutions share the roles of providing a check on government and of contributing to transformation. The newness of democracy, the great demands on the state and the political dominance of the governing party in South Africa are identified as the greatest challenges of the institutions discussed.

In this first of at least three editions planned for 2006, the focus is on environmental law: Professor Verschuuren of Tilburg University attributes the high moral value of the principles of environmental law to the ideal of sustainable development. Advocate Paschke and Professor Glazewski of Cape Town offers strong arguments against allowing retrospective environmental authorisation as militating against the purposes of environmental assessment.

Issues of environmental law in the South African context once more characterise this final issue of 2006. Couzens and Dent, both from the University of KwaZulu-Natal, extensively discuss shortcomings that occurred in the process of authorization of the building of a dam that will have implications for some ecosystems in the Kruger National Park. Alternative dispute resolution, as provided for in the National Environmental Management Act (NEMA) emerges as a likely means for the resolution of the difficulties and under the creative title "Finding NEMA", the authors express the hope that much will in future be learnt from the errors that occurred in this case.

The enforcement of socio-economic rights, the protection of biodiversity, inter-country adoptions, matrimonial property and Roman property law are the diverse, though highly engaging themes of this last issue of the year. In their article focusing on the process of the implementation of socio-economic rights by means of court orders in South Africa, Advocate Renier de Beer of Johannesburg and Professor Stella Vettori of the University of Pretoria urge the courts to become more adventurous in their methods of enforcement of their orders.

This first issue of 2007 covers a refreshing spectrum of legal disciplines ranging from cultural and linguistic issues, to the onus of proof in delict, the censorship debate and research methodology. Professor Elmene Bray of the University of South Africa analyses the complexities of the recent judgment of the Supreme Court of Appeal in a case involving the sensitive issue of the medium of instruction in public schools in South Africa.

Professor Dana van der Merwe of the University of South Africa (UNISA) delves into the impact of the information era on the law, drawing distinctions with the aid of legal philosophy between data, information and intelligence. o In similar vein Dr Tanya du Plessis of the University of Johannesburg investigates the impact of information and communication technology on the practice of law and knowledge management in law firms. o Professor Anneliese Roos of UNISA follows with an in-depth and comparative exposition of statutory data protection with specific reference to the legislation of New Zealand, illustrating important disadvantages for participants in the information technology arena in South Africa.

This edition contains an interesting mixture of contributions from various parts of the world and from the perspective of various disciplines of the law.o Dr. Timothy I Akomolede of the Olabisi Onabanjo University in Nigeria highlights a number of legal and socio-economic problems that have been engendered by the emergence of electronic commerce, especially in developing countries such as Nigeria.

All contributions in this issue are focused on the notion of good governance. Prof Stephen de la Harpe and Ms Rolien Roos of the North-West University (Potchefstroom Campus) and Dr Conny Rijken of Tilburg University have produced the issue as guest editors. Their introduction provides a concise overview of the exciting contributions on this highly topical subject.

In this issue the nexus between labour relations and electronic privacy, affirmative action in India, intercountry adoption of children, the award of costs in public interest litigation and the legal uncertainties surrounding liability for injuries of student actors are the themes of the contributions.

The oratio of Judge Deon van Zyl (currently Inspecting Judge: Inspectorate of Correctional Services) on the Judiciary as a Bastion of the Legal Order in Challenging Times appears in this issue at a time when the independence of the judiciary, the structures of the courts and various occurrences involving judges and the rule of law are topical in the public debate in South Africa. The paper was delivered in October 2008 as the annual FW de Klerk Lecture and it closes with the words: ". . . it is what they say and do in good faith and with reference to the moral values of the community they serve, that stimulates public confidence in the judiciary as a bastion of the legal order, however challenging the times may be."

We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007. In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them." He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication. Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication."

In this extraordinarily voluminous edition we offer 2 orationes, 8 articles and 3 notes. Oratio • The first oratio is by Josef GA Krger, QC. Partner in Borden Ladner Gervais LLP, Calgary, Canada, who spoke in August 2010 in Potchefstroom, giving an expert exposition of the Canadian law on the restructuring of insolvent corporations in Canada. • The second oratio is by Werner Menski of the School of Law, University of London, speaking in June this year at the University of London in a Religare Conference. Showing his distaste for fuzzy law, he argues that "moderate secularism" is not merely another fuzzy concept, but it is "super-fuzzy", and that lawyers claiming to love certainty "have a tendency to sit in judgment over matters and even pre-judge things they know little about, including legal pluralism" leading to much irritation.

This edition is wholly composed of selected and peer-reviewed contributions made in a specialist scholarly conference on Traditional Knowledge in Legal Context held at Potchefstroom on 17-18 March 2009 at Potchefstroom. Oratio Andre van der Merwe a Senior Director of DM Kisch Incorporated and practising Intellectual and Patent attorney, delivered the key-note address (here published as an oratio), posing the question whether traditional knowledge, for which there is no unambiguous definition, can effectively be protected under a single umbrella." After considering the matter from inter alia historical, philosophical and legal perspectives, he suggests a solution based on a multi-disciplinary approach.

This issue deals with a selection of topics of environmental law. As it should be clear from the short tribute written by Margaret Beukes, the issue is devoted to Professor Elmien Bray, for many years a force in the emergence of South African environmental law. Jonathan Verschuuren of Tilburg University expertly comments on the Dutch Crisis and Recovery Act, showing clearly why it is such a controversial piece of legislation: balancing economic recovery with sustainable development, sound principles of law, justice and crisis management is shown to be a very hard result to achieve by means of legislation.

Former State President F W de Klerk, an alumnus of Potchefstroom, delivered the seventh lecture in a series bearing his name last year in October. Some of the other lectures in the series were published in PER (2004(2), 2005(1), 2009(2). We are proud to publish Mr de Klerk's presentation in this issue as an oratio in which he stated that "the Constitution is the indispensable basis of our national unity and our best and abiding hope for continued freedom, prosperity and stability," but simultaneously felt constrained to identify seven threats to which the Constitution was exposed

The papers published in this special edition on law and education were written on the initiative of the South African Education Law Association (SAELA). JP Rossouw of the Faculty of Education Sciences of the North-West University (Potchefstroom Campus) and current chairperson of SAELA and Wilna Keet (attorney of Pratt Luyt & De Lange, Polokwane) investigate the delictual liability of educator-coaches in their combined functions as coaches, organisers of sport events, referees and sport officials in the context of the security of learner participants.

On 22 and 23 April 2010 the NWU (Potchefstroom Campus) Faculty of Law hosted a colloquium in collaboration with and sponsored by the Konrad-Adenauer Stiftung on the theme Good Governance in Land Tenure. In this issue we publish a selection of edited and reworked papers presented during the colloquium. A foreword to this joint issue of the Faculty and KAS by the Resident Representative of KAS in South Africa, Dr Werner Bohler, opens the discussion of a topic of global and local significance.

This issue opens with an oratio by one of South Africa's most senior judges, the Honourable LTC Harms who suggests that the South African criminal justice system should learn from the experience of international criminal courts regarding a merger of elements from accusatorial and inquisitorial systems. Shaun de Freitas and Georgia Myburgh of the University of the Free State argue that, if the protection of being human serves as the common denominator in the international discussion of human rights, and if human rights are deeply inclusive, however culturally and historically diverse, then failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Roger Evans of UNISA contends that modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates.

A wide range of unrelated topics are addressed in five articles and three notes published in this issue. The first article, contributed by Sieg Eiselen of UNISA, deals comparatively with the difficulties of an appropriate interpretation of the UN Convention on Contracts for the International Sale of Goods (CISG) regarding standard terms in international contracts of sale. Eiselen subscribes to an approach according to which a clear incorporation clause in the contract is considered to be sufficient for the effective incorporation of standard terms.

This edition opens with a discussion by Loma Steynberg of UNISA of the challenges attending judicial decision-making in the award of delictual damages based on actuarial calculations.

We are living in an era in which constitutional law has become a comparative science. A cogent, generally accepted methodology for constitutional comparison, however does not exist. There can, it is therefore submitted, be no such thing as a universal, monolithic science or discipline of comparative law, be it in the field of private or of public law. On the other hand, juridical comparison done unscientifically will not yield the fruits of useful knowledge. The law in general is replete with unspecific notions such as justice, reasonableness, public interest, boni mores, and many others. It should therefore not be disturbing to find that values are often foundational to the operation and application of constitutional law. The values underpinning different constitutional systems may be useful as a tertium comparationis in a comparative exercise. This however requires a penetrating consideration of the foundations of the systems being compared. In this contribution "a small comparative exercise" is undertaken by way of demonstration of the method. The South African constitutional provisions relating to equality and affirmative action are set against the background of the relevant norms and practices in the United States of America and Canada. This produces some useful insights: in the USA equality increasingly underpins a strict proscription of discrimination, thus shrinking the scope for justifiable affirmative action programmes; the South African law relating to discrimination and upliftment of the disadvantaged was clearly influenced by, and is therefore better understood against the background of, the equivalent arrangements in Canada, which was in its turn possibly conceived against the backdrop of early developments in this regard in the USA; the Canadian doctrine and law of the constitution deals with affirmative action as an exception to the prohibition of discrimination and does not favour private affirmative action programmes; the South African approach seeks on the one hand to promote equality as a near-absolute prohibition of discrimination, while on the other hand affirmative action is projected not as an exception to nondiscrimination, but as a means of achieving equality; whereas the identification of disadvantage in the USA and Canada tends to focus on discrete and insular minorities, the South African Constitution deals with an obvious reality of past disadvantage of a substantial majority, thus probably giving preferential programmes in South Africa a different character. It is concluded that "comparing with values" has, at the very least, the potential of revealing which foreign sources can justifiably be used locally as authoritative or pursuasive references, and which not.

In dealing with the influence of political considerations on the Constitutional Court's interpretation and application of the Bill of Rights it appears to be useful to first consider the meaning of "politics" in the judicial context, then to determine the considerations when politics are alleged to require the recusal of a judge and lastly to describe the Constitutional Court's position on judges and politics.