Research

Research papers, academic articles, and submissions to government which Martin has authored or co-authored will appear on this list. The latest publication appears first.

Contents:

Have We Been Underemphasising Public Participation?
Regulation of Agricultural Land Holdings Bill
Public Participation in Policy-Making in South Africa
Pardoning Power of the President of South Africa
Prevention and Combating of Hate Crimes and Hate Speech Bill
South African Law and Social Engineering
Assorted Fallacies and Institutionalized Hypocrisy

Have We Been Underemphasising Public Participation?

Article in De Rebus, 1 July 2017

Martin submitted an article about public participation in law- and policy-making to the periodical attorneys’ magazine De Rebus.

Regulation of Agricultural Land Holdings Bill

FMF Submission to the Department of Rural Development and Land Reform

The Regulation of Agricultural Land Holdings Bill, 2017 violates the Constitution and signifies government’s erroneous understanding of property rights.

It seeks to disallow foreigners ownership of agricultural land in South Africa, seeks to establish an Apartheidesque national registry of the races and sexes of land owners, and seeks to inter alia give government the right of first refusal in the alienation of foreign-owned agricultural land.

In this submission Martin sets out the theory of property rights and considers the property rights provision in the South African Constitution, and analyzes the Bill’s shortcomings in that light.

Public Participation in Policy-Making in South Africa

FMF Research Paper, 10 March 2017

Martin wrote a research paper on public participation in the context of policy-making (as opposed to law-making), which was divided into two parts.

The first part of the paper serves as an analysis of the principle of public participation as a part of the Constitution, and as a part of the Rule of Law. Martin also considers and discusses socio-economic impact assessments (SEIAs) as a potential part of the constitutional requirement of transparency and evidence-based policy-making. The focus is on public involvement in the policy-making process at national level, rather than involvement in law-making, i.e. the legislative process, or involvement in provincial or municipal policy-decisions.

It is, however, apt to note that the Constitution does oblige Parliament, as well as the provincial and municipal legislative bodies, to engage the public when laws are made.

In the second part of the paper, the principles, rules, and considerations outlined in the first part are applied to the introduction of the Information and Communication Technologies Policy White Paper, that was published by the Department of Telecommunications and Postal Services and which was approved by Cabinet in late September 2016.

Pardoning Power of the President of South Africa

FMF Research Paper, 24 March 2017

With many in South Africa wondering about whether a president can pardon or give clemency to her predecessor for his potential criminal wrongdoing, Martin penned a research paper considering this question.

Firstly, he considers the current constitutional provision and compares it with the four constitutions South Africa has had since the Union was formed in 1910; namely, the South Africa Act, the 1961 (republican) Constitution, the 1983 (tricameral) Constitution, and the 1993 (interim) Constitution.

Secondly, he considers the pardoning power within South Africa’s historical context, by looking at the pardoning power as it existed in the Transvaal Republic, the Orange Free State, the Cape Colony, and the Natal Colony.

Thirdly, he compares South Africa’s constitutional pardoning power with that of certain foreign jurisdictions.

Fourthly, he analyses the nature and extent of the constitutional pardoning provision.

And finally, he considers the pardoning provision within the context of the Rule of Law.

Prevention and Combating of Hate Crimes and Hate Speech Bill

FMF Submission to the Department of Justice and Constitutional Development

The Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 violates the Constitution of South Africa and the doctrine of the Rule of Law in several respects:

  1. It is theoretically possible to convict a person on a charge of ‘hate crime’ even if they are acquitted of the offence which gave rise to the charge.
  2. The definition of ‘hate crime’ overlaps to such a significant extent with the definition of ‘hate speech’ that anyone who is charged with hate speech must also as a necessary consequence be charged with hate crime.
  3. The grounds giving rise to hate speech (“insult” with the intention to “bring into contempt or ridicule”) are overly-broad and inconsistent with the Constitution (“advocacy of hatred that constitutes incitement to cause harm”).
  4. The protected characteristics are more numerous (17 characteristics, including “belief” and “occupation or trade”) than what the Constitution allows for (race, ethnicity, religion, and gender).
  5. The Bill provides for no defences or exemptions, which effectively means most normal human expression will be deemed hate speech.

Martin authored this submission which was sent to the Department of Justice and Constitutional Development in late January 2017.

South African Law and Social Engineering

Senior Thesis at the University of Pretoria

Apartheid was, in its essence, a state-enforced system of social engineering based on various legal assumptions; most importantly, the apparent ‘right’ of the State to compel individual persons to adhere to the system. Since Apartheid has ended, it’s important to ask whether or not this has changed.

Certainly, if one only seeks to scratch the surface of inquiry, much has, indeed changed. However, is ‘Transformation’ as we know it today, not also a state-enforced system of social engineering; and is it too not based on that very same legal assumption?

This paper considers and attempts to answer these questions.

Assorted Fallacies and Institutionalized Hypocrisy

Legal Philosophy Paper at the University of Pretoria

The post-Apartheid legal intelligentsia in South Africa have much to say about redressing the legacy of the former regime’s social engineering. It does this, however, by relying on the same tools and philosophy which enabled the Apartheid regime to do what it did in the first place.

In this paper, Martin analyzes and exposes the force (coercion) underlying South Africa’s ‘Transformation’ project and the general leftward inclination of contemporary intellectuals. Martin’s senior thesis built upon the groundwork laid in this essay.