Protected rights and religious reform: when in dialogue, how do the South African secular legal system and the ancient orthodox Jewish law of Kol Isha intersect and interact?

2017 ◽  
Vol 33 (2) ◽  
pp. 302-313
Author(s):  
Jade Tess Weiner
Keyword(s):  
South African ◽  
Legal System ◽  
Orthodox Jewish ◽  
Jewish Law ◽  
The South ◽  
Religious Reform

scholarly journals PRAWO RZYMSKIE JAKO ŹRÓDŁO PRAWA W AFRYCE POŁUDNIOWEJ

2017 ◽  
Vol 3 (1) ◽  
pp. 139
Author(s):  
Rafał Mańko
Keyword(s):  
South African ◽  
Legal System ◽  
Case Law ◽  
The Other ◽  
Customary Law ◽  
Roman Law ◽  
The South ◽  
Cape Of Good Hope ◽  
Ius Commune ◽  
The Republic

ROMAN LAW AS A SOURCE OF LAW IN SOUTHERN AFRICASummary Roman law is usually regarded as an object o f historic study and not as a practical discipline of the legal science. However, the situation is different in six South African states - the Republic of South Africa, Zimbabwe, Lesotho, Swaziland, Botswana and Namibia - which have preserved the uncodified ius commune europaeum brought by the Dutch to the Cape of Good Hope in the 17th century.The hierarchy of the fontes iuris oriundi in the South African legal system seems to be the following: the Constitution, statutes, customary law, case-law, Roman-Dutch law and Roman law. The position occupied by Roman law is in fact only subsidiary, however it is a source of law and is referred to from time to time in the case-law. On the other hand it permeates the whole legal system which is based on fundamental notions derived from Roman law, which have been preserved and developed in the treatises of the Roman-Dutch jurists and the case-law of the courts.The frequency o f citations of Roman law in the South African case-law has been an object of two major studies. One, conducted by Van Der Merve concerned the period 1970-1979, the other, by Du Plessis - took into account the cases of 1990-1991. The studies revealed that Roman sources are cited in 4,7-4,8% of the case-law. According to another study by Zimmermann, only in half o f those cases the Roman sources were relevant for deciding the case.Nevertheless, it is submitted that these figures should be treated as significant, especially when compared with the position occupied by Roman sources in the modern case law in other civilian jurisdictions. 

scholarly journals A South African Public Law Perspective on Digitalisation in the Health Sector

2021 ◽  
Author(s):  
Firoz Cachalia ◽  
Jonathan Klaaren
Keyword(s):  
Public Health ◽  
Technological Change ◽  
South African ◽  
Legal System ◽  
Industrial Revolution ◽  
Health Sector ◽  
Public Law ◽  
The South ◽  
Working Paper ◽  
Fourth Industrial Revolution

We explored some of the questions posed by digitalisation in an accompanying working paper focused on constitutional theory: Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa. In that paper, we asked what legal resources are available in the South African legal system to respond to the risk and benefits posed by digitalisation. We argued that this question would be best answered by developing what we have termed a 'South African public law perspective'. In our view, while any particular legal system may often lag behind, the law constitutes an adaptive resource that can and should respond to disruptive technological change by re-examining existing concepts and creating new, more adequate conceptions. Our public law perspective reframes privacy law as both a private and a public good essential to the functioning of a constitutional democracy in the era of digitalisation. In this working paper, we take the analysis one practical step further: we use our public law perspective on digitalisation in the South African health sector. We do so because this sector is significant in its own right – public health is necessary for a healthy society – and also to further explore how and to what extent the South African constitutional framework provides resources at least roughly adequate for the challenges posed by the current 'digitalisation plus' era. The theoretical perspective we have developed is certainly relevant to digitalisation’s impact in the health sector. The social, economic and political progress that took place in the 20th century was strongly correlated with technological change of the first three industrial revolutions. The technological innovations associated with what many are terming ‘the fourth industrial revolution’ are also of undoubted utility in the form of new possibilities for enhanced productivity, business formation and wealth creation, as well as the enhanced efficacy of public action to address basic needs such as education and public health.

Writing South African Legal History: A Prospectus

1989 ◽  
Vol 30 (2) ◽  
pp. 265-288 ◽  
Author(s):  
Martin Chanock
Keyword(s):  
South African ◽  
Legal System ◽  
Social Order ◽  
Legal History ◽  
African State ◽  
State Power ◽  
The State ◽  
The South ◽  
Post Colonial ◽  
Criminal Control

This article outlines the approach to the writing of South African legal history being taken in a book in progress on the South African legal system between 1902 and 1929. It suggests that legalism has been an important part of the political culture of South Africa and that, therefore, an understanding of legal history is necessary to a comprehension of the South African state. It offers a critique of the liberal notion of the rule of law as a defence against state power, arguing that in the South African context ideological and legitimising explanations of law should be de-emphasised in favour of an approach which emphasises the instrumental nature of law in relation to state power. Elements of the existing legal and historical literature are briefly reviewed.The basic orientation is to consider the South African legal system as essentially a post-colonial British system rather than one of ‘Roman-Dutch law’. The study is divided into four parts. The first looks at the making of the state between 1902 and 1910 and considers the role and meaning of courts, law and police in the nature of the state being constructed. The second discusses ‘social control’. It considers the ideological development of criminology and thought about crime: the nature of ‘common law’ crime and criminal law in an era of intensified industrialisation; the development of statutory criminal control over blacks; and the evolution of the criminalising of political opposition. The third part considers the dual system of civil law. It discusses the development of Roman-Dutch law in relation to the legal profession; and outlines the development of the regime of commercial law, in relation to contemporary class and political forces. It also examines the parallel unfolding of the regime of black law governing the marital and proprietal relations of blacks, and embodied in the Native Administration Act of 1927. The final segment describes the growth of the statutory regime and its use in the re-structuring of the social order. It suggests that the core of South African legalism is to be found in the emergence of government through the modern statutory form with its huge delegated powers of legislating and its wide administrative discretions.

Revisiting the Monism and Dualism Dichotomy: What does the South African Constitution of 1996 and the Practice by the Courts tell us about the Reception of SADC Community Law (Treaty Law) in South Africa?

2021 ◽  
Vol 29 (1) ◽  
pp. 168-182
Author(s):  
Moses Retselisistoe Phooko
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Main Question ◽  
The South ◽  
The Rule Of Law ◽  
Community Law ◽  
Municipal Law ◽  
Major Shift ◽  
South African Constitution

The jurisprudence of the (suspended) SADC Tribunal shows that the Tribunal was prepared to utilise the principles of democracy, human rights and the rule of law contained in the Treaty of the Southern African Development Community (SADC Treaty) to ensure that SADC member states fulfil their treaty obligations. The decisions rendered by the SADC Tribunal and the participation of the South African former President in a process that halted the functioning of the Tribunal have brought interesting legal developments in the South African legal system in so far as the reception and application of SADC community law in South African municipal law is concerned. The argument presented in this article is that the recent seemingly monist approach by the courts represents a major shift from a prescribed procedure provided for in the Constitution of South Africa, 1996 (the Constitution). The practice by the courts further ignores the dualist nature of South Africa's legal system. The main question presented in this discourse is whether a departure by the courts from a constitutionally mandated procedure of domesticating SADC community law into municipal law signifies a new and settled norm which entails that South Africa now follows a hybrid system (i.e. monism and dualism) of treaty incorporation? In light of this possible legal uncertainty, I propose that South Africa adopts a harmonisation theory to address the legal gap created by the courts.

scholarly journals (WO)MAN IN THE MIRROR — A REFLECTION: LAW’S INFLUENCE ON SOCIETY, IDENTITY AND FEMINISM

2015 ◽  
Author(s):  
Devon-Lee Andriés
Keyword(s):  
South African ◽  
Legal System ◽  
Scientific Research ◽  
Open Approach ◽  
Large Role ◽  
The South ◽  
The Law ◽  
The Individual

A legal system, which proposes one thing while implementing another, lacks integrity and accountability – values the Constitution aims for the South African legal system to uphold. I propose that a more open approach to the law will result in a legal system that provides for true freedom in dignity and identity for those falling under its jurisdiction. Furthermore, moving away from a modernist approach to a post structural, more general jurisprudence will lead to inclusion of women (providing a remedy to their oppression) and to a more substantially equal application of the law. I will be structuring my research around the work of a couple theorists and will use their perspectives to supplement my own argument. These include the work of Marx, Foucault, Veitch, Barnett, de Beauvoir, Dowling, Botha and Douzinas and Geary. To add flavour to this investigation, I will include some neuro-scientific perspectives based on the work of David Rock. Veitch suggests that the law plays a large role in protecting the autonomy of the individual — an area of great neuro-scientific research.

scholarly journals Is discriminating against employees living with cancer in the workplace justified?

De Jure ◽  
2021 ◽  
Vol 54 ◽  
Author(s):  
Charles Maimela
Keyword(s):  
South African ◽  
Human Body ◽  
Legal System ◽  
Medical Condition ◽  
South African Context ◽  
The South ◽  
African Context ◽  
Living With Cancer

SUMMARY This article interrogates the issue relating to employees living with cancer taking part in employment without being discriminated against based on their medical condition. It will be clearly outlined that cancer does not take away the ability of employees living with cancer to continue with work or enter into employment, which is what most employers and fellow employees believe based on the myth and stigma attached to cancer. This needs to be discouraged through proper education and creating awareness about cancer. This article will interrogate what cancer is and how it develops in the human body as well as the extent or impact of cancer on a patient to a point of leading to disability. The debate of whether cancer amounts to a disability in the South African context will be entertained and recommendations outlined with the aim of ensuring that employees living with cancer are not excluded in taking part in employment among other things. Focus will then shift to the most important aspect of this article which is discrimination, and to explore the different forms of discriminations as well as outline why employers tend to discriminate against employees living with cancer and can this conduct of employers be justified in any way in line with the South African legal system and the article will be incomplete if reference is not made to the English legal system. This is attributed to the fact that the South African legal system is built on the English legal system to a lesser or greater extent and lessons can be drawn from the English legal system due to the advances that have been made when it comes to the protection of employees living with cancer in the workplace. Recommendations will follow with the aim of providing a way forward for employees living with cancer in the South African market.

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