scholarly journals Homeownership, Legal Administration, And The Uncertainties Of Inheritance In South Africa’s Townships: Apartheid’s Legal Shadows

2021 ◽  
Author(s):  
Maxim Bolt
Keyword(s):  
South Africa ◽  
Administrative Process ◽  
Alternative Perspective ◽  
Starting Point ◽  
Normative Pluralism ◽  
The Law ◽  
Legal Administration ◽  
Normative Consensus ◽  
Property Inheritance ◽  
Point Of Departure

Abstract Expanded homeownership in Johannesburg’s townships offered the prospect of post-apartheid formal inclusion. Yet allocation of title to former rental homes has been characterized by a profound lack of normative consensus regarding ownership or inheritance. In bitter disputes over houses, appeals to law jostle and interweave with claims in a customary register. In much regional scholarship, normative pluralism provides a point of departure for understanding disagreement of this kind. This article proposes an alternative perspective by examining how dissensus is mediated and given shape by a legal–administrative process. Law becomes inchoate in layers of bureaucratic encounter, while contested claims to custom are sharpened at the interface with bureaucracy. In South Africa, taking administration as a starting point reveals the long shadows of apartheid in concrete experiences of the law, in extra-legal understandings, and in the very terms of contestation among kin. Illuminating the little-explored topic of urban property inheritance, the perspective has broader implications for understanding inequality. Inclusion through homeownership is a form of ‘adverse incorporation’ marked by official opacity, diffidence regarding the law, stratifying administrative dualism, and uncertainty about the parameters of ownership and inheritance.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

South African Animal Legislation and Marxist Philosophy of Law

Cultura ◽  
2019 ◽  
Vol 16 (1) ◽  
pp. 23-28
Author(s):  
Luis CORDEIRO-RODRIGUES
Keyword(s):  
South Africa ◽  
South African ◽  
Social Reality ◽  
Marxist Philosophy ◽  
Philosophy Of Law ◽  
Berlin Wall ◽  
Animal Farming ◽  
Animal Law ◽  
The Law ◽  
Farming Industry

Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.

Stasis Anxiety

2017 ◽  
Author(s):  
Andrew van der Vlies
Keyword(s):  
South Africa ◽  
Civil War ◽  
Black Writers ◽  
Political Rights ◽  
Ancient Greek ◽  
Individual Subject ◽  
Starting Point ◽  
The Individual ◽  
Past Experiences ◽  
Contemporary Writing

Two recent debut novels, Songeziwe Mahlangu’s Penumbra (2013) and Masande Ntshanga’s The Reactive (2014), reflect the experience of impasse, stasis, and arrested development experienced by many in South Africa. This chapter uses these novels as the starting point for a discussion of writing by young black writers in general, and as representative examples of the treatment of ‘waithood’ in contemporary writing. It considers (spatial and temporal) theorisations of anxiety, discerns recursive investments in past experiences of hope (invoking Jennifer Wenzel’s work to consider the afterlives of anti-colonial prophecy), assesses the usefulness of Giorgio Agamben’s elaboration of the ancient Greek understanding of stasis as civil war, and asks how these works’ elaboration of stasis might be understood in relation to Wendy Brown’s discussion of the eclipsing of the individual subject of political rights by the neoliberal subject whose very life is framed by its potential to be understood as capital.

Law and Economics

2020 ◽  
pp. 84-102
Author(s):  
Daniel B. Kelly
Keyword(s):  
Economic Analysis ◽  
First Generation ◽  
Law And Economics ◽  
Private Law ◽  
Foreseeable Future ◽  
Business Associations ◽  
The Third ◽  
Starting Point ◽  
The Law ◽  
The Impact

This chapter analyzes how law and economics influences private law and how (new) private law is influencing law and economics. It focuses on three generation or “waves” within law and economics and how they approach private law. In the first generation, many scholars took the law as a starting point and attempted to use economic insights to explain, justify, or reform legal doctrines, institutions, and structures. In the second generation, the “law” at times became secondary, with more focus on theory and less focus on doctrines, institutions, and structures. But this generation also relied increasingly on empirical analysis. In the third generation, which includes scholars in the New Private Law (NPL), there has been a resurgence of interest in the law and legal institutions. To be sure, NPL scholars analyze the law using various approaches, with some more and some less predisposed to economic analysis. However, economic analysis will continue to be a major force on private law, including the New Private Law, for the foreseeable future. The chapter considers three foundational private law areas: property, contracts, and torts. For each area, it discusses the major ideas that economic analysis has contributed to private law, and surveys contributions of the NPL. The chapter also looks at the impact of law and economics on advanced private law areas, such as business associations, trusts and estates, and intellectual property.

Ein rechtsfreier Raum? Die legale Situation auf den Färöern im Spiegel der ‚Færeyinga saga‘

2020 ◽  
Vol 25 (1) ◽  
pp. 30-45
Author(s):  
Andreas Schmidt
Keyword(s):  
Cultural Norms ◽  
Old Icelandic ◽  
Power Politics ◽  
Starting Point ◽  
Narrative Literature ◽  
The Law

AbstractThe chapter argues for a more nuanced and empirically based understanding of the discourse on law and socio-cultural norms in Old Icelandic literature on the grounds of a narratological reading of ‘Færeyinga saga’ as a case study. It has often been claimed that Icelandic sources express an ideal of freedom based on communality as guaranteed by the law. By contrast, ‘Færeyinga saga’ represents a cynical discourse on power politics that renders law as an invariable concept obsolete and works solely on the principle that ‘might is right’. This cynicism, however, is presented in a form that leaves the narrative open to interpretation, showing that regardless of its possible dating, narrative literature can serve as a starting point for social discussion. Consequently, the discourse on law in medieval Iceland must be perceived as more polyphonic than has been allowed for by previous unifying readings in scholarship.

scholarly journals Openbaring as principium theologiae

1993 ◽  
Vol 27 (1) ◽  
Author(s):  
M. A. Kruger
Keyword(s):  
South Africa ◽  
Contextual Theology ◽  
World Religions ◽  
General Revelation ◽  
Reformed Churches ◽  
The Relationship ◽  
Point Of Departure ◽  
The Universe

Theological renewal regarding different theological disciplines as well as the complete theological encyclopedia has lately been debated worldwide. Likewise, the Reformed Churches in South Africa are in a process of reconsidering the traditional reformed theological encyclopedia. This task can, however, not be fulfilled unless the basic issues are not also reconsidered. This article focuses on revelation as the principium theologiae. The line of argumentation centres round the fundamental confession in article 2 of the Belgian Confession. The truth implicit in this article, and accepted by the Reformed Churches, stresses that God can be known through his creation, sustenance and government of the universe, but He can be known more convincingly by studying holy Scripture. To prove this point of departure, Romans 1-4 and Romans 10 are discussed. The distinction between special and general revelation, contextual theology and the relationship to world religions and H. Bavinck's concept of the principium theologiae are also considered.

Changes in the Prognosis of Functional Psychoses Since the Days of Kraepelin

1967 ◽  
Vol 113 (501) ◽  
pp. 813-822 ◽  
Author(s):  
Örnulv Ödegård
Keyword(s):  
Special Problem ◽  
Point Of View ◽  
General Point ◽  
Course Of Illness ◽  
Dynamic Reasoning ◽  
Starting Point ◽  
Functional Psychoses ◽  
External Conditions ◽  
Point Of Departure ◽  
The Universe

My choice of Kraepelin as a point of departure for this lecture has definite reasons. If one wants to stay within the field of clinical psychiatry (as opposed to psychiatric history), that is as far back as one can reasonably go. By this no slight is intended upon the pre-Kraepelinian psychiatrists. For our topic Henry Maudsley would indeed have been a most appropriate starting point, and by no means for reasons of courtesy. His general point of view is admirably sound as a basis for the scientific study of prognosis in psychiatry. I quote: “There is no accident in madness. Causality, not casualty, governs its appearance in the universe, and it is very far from being a good and sufficient practice simply to mark its phenomena and straightway to pass on as if they belonged not to an order but to a disorder of events that called for no explanation.” On the special problem of prognosis he shows his clinical acumen by stating that the outlook is poor when the course of illness is insidious, but this only means that these cases develop their psychoses on the basis of mental deviations which go very far back in the patient's life, so that in fact they are generally in a chronic stage at the time of their first admission to hospital. Here he actually corrects a mistake which is still quite often made. He shows his dynamic attitude when he says that prognosis is to a large extent modified by external conditions, in particular by the attitude of friends and relatives. Maudsley's dynamic reasoning was limited by the narrow framework of the degeneration hypothesis of those days. He had a sceptical attitude towards classification, which he regarded as artificial and dangerously pseudo-exact. His own classification was deliberately provisional, with very wide groups. He held that a description of various sub-forms of chronic insanity was useless, as it would mean nothing but a tiresome enumeration of unconnected details.

scholarly journals Illogicality and Roman Law

1972 ◽  
Vol 7 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South Africa ◽  
International Law ◽  
Western Europe ◽  
Outer Space ◽  
Roman Law ◽  
Modern World ◽  
Legal Systems ◽  
The Moon ◽  
Age Of Reason ◽  
The Law

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

Rethinking the Meaning of Ordinary Meaning in Light of the ICJ’s Jurisprudence

2021 ◽  
Vol 20 (2) ◽  
pp. 267-288
Author(s):  
Katayoun Hosseinnejad
Keyword(s):  
Vienna Convention ◽  
International Court Of Justice ◽  
Ordinary Meaning ◽  
Objective Standard ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
The Law ◽  
Legal Meaning

Abstract Article 31 of the Vienna Convention on the Law of Treaties calls for consideration of the ordinary meaning as the starting point in the process of interpretation. Although the linguistic concept of ordinary meaning is founded on the idea that the meaning of a sentence is directly imposed by the norms of language so that interpreters are provided with an objective standard which is external to their subjectivity, this article demonstrates that the interpretive jurisprudence of the International Court of Justice has departed from the imperatives of the ordinary meaning doctrine. Rather, the Court, mindful of the problem that no mere sequence of words can represent actual legal meaning, has moved towards construction of ordinary meaning.

scholarly journals Historical understanding and rethinking the foundations

2007 ◽  
Vol 63 (3) ◽  
Author(s):  
Jurie Le Roux
Keyword(s):  
South Africa ◽  
Nineteenth Century ◽  
New Testament ◽  
Historical Jesus ◽  
Historical Understanding ◽  
History Writing ◽  
The University ◽  
Point Of Departure

This article contributes to the fundamental rethinking of New Testament scholarship being undertaken by New Testament scholars attached to the University of South Africa (UNISA), Pretoria, South Africa. The thrust of the article holds that the historical Jesus research is of the utmost importance and it puts the emphasis on the individuality of an event and the contribution of nineteenth century reflection on history. As point of departure and further elaboration it accentuates the notion that history writing must be a form of homecoming.

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