The old authorities in South African practice

2007 ◽  
Vol 75 (4) ◽  
pp. 399-408
Author(s):  
Ian Farlam
Keyword(s):  
South Africa ◽  
Seventeenth Century ◽  
South African ◽  
English Translation ◽  
East India Company ◽  
The Other ◽  
Dutch East India Company ◽  
The Law ◽  
The Republic ◽  
New Generation

AbstractThe old authorities have been quoted in, and relied on by, the courts of the Cape and subsequently in the other territories making up the Republic of South Africa from the foundation of the colony by the Dutch East India Company in the middle of the seventeenth century. By the end of the nineteenth century not only were the main authorities extensively quoted in the courts but the doctrines they contained were being incorporated in the textbooks that were being written. And that is still the position. It is not likely that the new generation of judges to be appointed in the next few decades will frequently consult the old authorities for guidance but the civil component of the law, already anchored in the judgments of the courts and the textbooks, will forever be part of the law. When the old authorities are consulted, it is likely that those used will primarily be those available in English translation.

scholarly journals I am/am I an African? A relational reading of Diaspora and Identity in South African Fiction by J.U. Jacobs

Literator ◽  
2017 ◽  
Vol 38 (1) ◽  
Author(s):  
Miki Flockemann
Keyword(s):  
South Africa ◽  
South African ◽  
Performing Arts ◽  
The Other ◽  
Important Addition ◽  
Recent Trends ◽  
The One ◽  
New Generation ◽  
Globalising World ◽  
Comprehensive Study

The publication of Diaspora and Identity in South African Fiction (2016) by J.U. Jacobs is a timely intervention, in that it is the first comprehensive study of South African fiction to sustain the argument that South African writing is always already diasporic. Although Jacobs’ diasporic framework undoubtedly serves as an important addition to the recent trends identified by literary scholars, his focus on 12 well-established writers (including Coetzee, Wicomb, Mda, Gordimer and Ndebele), highlights some of the gaps that need to be filled in a study of this kind. For instance, what about the younger generation of writers, including those from elsewhere in Africa who are writing about living in South Africa? How do they deal with what has been termed the new diaspora, with debates around Afropolitanism and the experiences of internal, inter-continental and trans-continental migrancy in an increasingly globalising world? Despite these shortcomings, Jacobs’ premise about the inevitably diasporic identifications that are narrativised in the 20 novels analysed here can provide a useful foundation for further scholarship on how the diasporic condition informs and is mediated in other texts. These, as I will show, range from works by a new generation of emerging writers on the one hand to the performing arts on the other hand.

Family Provision in South Africa

2020 ◽  
pp. 477-506
Author(s):  
Marius J de Waal
Keyword(s):  
South Africa ◽  
Seventeenth Century ◽  
South African ◽  
Common Law ◽  
The Other ◽  
Customary Law ◽  
Protection Measures ◽  
South Africans ◽  
The Common ◽  
Property Regime

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

The Structure of the South African Labor Market, 1970–83

1987 ◽  
Vol 15 (4) ◽  
pp. 63-78
Author(s):  
Rudolph Daniels
Keyword(s):  
South Africa ◽  
Labor Market ◽  
Predominantly White ◽  
South African ◽  
Land Ownership ◽  
The Other ◽  
Black Labor ◽  
Income Distributions ◽  
Political Upheaval ◽  
The Republic

The structure of the labor market in the Republic of South Africa over 1970–83 is strongly linked to the Natives Land Act of 1913, No. 27, which dispossessed blacks of their legal right to land ownership. One of the intended results of this act was to increase the supply of cheap black labor to South Africa's predominantly white-owned industry. Thus, over the 1970–83 period, as before, blacks occupied the lowest ends of the educational, occupational, employment, and income distributions among all races in South Africa. On the other hand, the white minority lived at a standard equal to that of Americans and Scandanavians. However, even within these constraints, the demographics of South Africa are such that over the next decade or more, and even in the absence of major political upheaval, blacks may comprise an increasing percentage of the workforce and occupy positions which have been mainly occupied by whites to date.

Discussion

1957 ◽  
Vol 14 (04) ◽  
pp. 369-372
Author(s):  
R. G. Mallett
Keyword(s):  
South Africa ◽  
Fifteenth Century ◽  
South African ◽  
Personal Experience ◽  
East India Company ◽  
Dutch East India Company ◽  
The People ◽  
Fresh Vegetables

It is a matter of some regret to me that a member of the Actuarial Society of South Africa cannot be here this evening to provide an introduction to the paper before you. While I feel I am honoured by my South African friends in being asked, as an ex member of the Society, to undertake this duty, I must confess that I am wondering whether my personal experience is sufficient to qualify me for this task.For much of his work the actuary is concerned with the people living around him and I think therefore that I should say something about the people living in the Union of South Africa.South Africa was first discovered around the end of the fifteenth century, but it was not until 1652 that the first settlement was made by the Dutch East India Company. The settlers were under the control of Jan van Riebeeck who was charged with the duty of providing fresh vegetables, etc., for replenishing the stores of ships rounding the Cape.

scholarly journals Inheritance Rights for Posthumously Procreated Children: A Growing Challenge for the Law

2018 ◽  
Vol 21 ◽  
pp. 1-30
Author(s):  
Frederick Noel Zaal ◽  
Justin D'Almaine
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Artificial Reproduction ◽  
Cryogenic Technology ◽  
Laboratory Conditions ◽  
The Common ◽  
The Law ◽  
The Republic ◽  
Human Gametes

Significant advances in cryogenic technology render it possible to freeze and store human gametes. Under appropriate laboratory conditions frozen gametes can remain viable for long periods of time. In consequence, it is possible for a child to be conceived and procreated after the death of one or both parents. This raises some challenging juristic problems. Amongst these are implications for the law of inheritance. Where a valid will expressly refers to a child who will be procreated after the testator's death, the child's right to inherit will be secured. However, where a will merely refers to children as a class, or with intestate succession, it becomes uncertain whether a posthumously procreated child has a right to inherit. South African legislation governing succession, the common law and the Constitution of the Republic of South Africa, 1996 all fail to provide definitive answers. Because of this and as the numbers of posthumously procreated children are likely to increase as artificial reproduction services become more widely available, there is a need for South African legislation to clarify their inheritance rights.

scholarly journals BREAKING THE LANGUAGE BARRIER IN LEGAL EDUCATION: A METHOD FOR AFRICANISING LEGAL EDUCATION

2020 ◽  
Author(s):  
Thokozani Dladla
Keyword(s):  
South Africa ◽  
South African ◽  
First Language ◽  
Legal Education ◽  
African Language ◽  
Law Schools ◽  
African Languages ◽  
Chief Justice ◽  
The Law ◽  
The Republic

Section 6 of the Constitution of the Republic of South Africa, 1996 recognises eleven official languages of the Republic and further requires the State to take practical steps to advance the use of African languages. The Statistics South Africa 2017/18 report shows that most South Africans’ first language are African languages. Despite this reality and the constitutional imperatives, the South African Bachelor of Laws (LLB) curriculum does not prescribe any African language as a compulsory course, and very few sources of law are in an African language. Some law schools do offer some African languages as an elective. However, it is submitted that this is not sufficient. Experience has shown that the inability to articulate oneself in English can be a barrier to completing the LLB degree in regulation-time and admission to legal practice. Furthermore, it is submitted that the Chief Justice 2017 Directive, in which Chief Justice Mogoeng declared English as the only language of record in South African courts, does not address the language problems experienced by court staff. Instead it simply perpetuates the Eurocentric legal system. This is because it counters the advancement and use of African languages envisaged by the Constitution. This article investigates how the failure to advance multilingualism in the current LLB curriculum can disadvantage law students going to practice. It is proposed that law schools begin to address this issue by introducing two innovations. First, it is suggested that law schools make at least one African language a compulsory course. For English first language speakers in particular, this arrangement will strengthen their understanding of the sociological context in which the law operates. Second, it is proposed that each law school should choose an African language that is predominantly spoken in their geographical area and partner with schools of languages to translate sources of law. For African first language speakers in particular, this will assist them in understanding legal concepts better. Translations of legal texts may also allow for law schools to teach the law in the local African language.

scholarly journals SEPARATION OF POWERS, CHECKS AND BALANCES AND JUDICIAL EXERCISE OF SELF- RESTRAINT: AN ANALYSIS OF CASE LAW

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Magabe T Thabo ◽  
Kola O Odeku
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
State Power ◽  
Case Law ◽  
The State ◽  
The Other ◽  
Judicial Power ◽  
Checks And Balances ◽  
The Republic

The Constitution of the Republic of South Africa, 1996 creates a system in which there is a separation of the powers exercised by the different branches of the State. It also creates a system of checks and balances. The exercise of a power by one arm of state is checked by another to ensure that there is no abuse of state power. Organs of state ought to respect each other and the powers allocated to them by the Constitution. To this end, no organ of state should encroach upon the domain of the other organs. However, the courts wield enormous power because they are the ultimate guardians and custodians of the Constitution in South Africa. Courts have the power to declare any law or conduct unconstitutional. Where decisions have been taken by other arms of the State on matters falling within their exclusive domain and such decisions violate the Constitution, courts have a duty to intervene in order to make organs of state act within constitutional bounds. However, courts should not be overzealous and should not encroach upon the powers of the other arms of the State when exercising their judicial power and authority. Against this backdrop, this article analyses how the South African courts have cautioned themselves to exercise self-restraint in order not to usurp or encroach upon the powers of the other arms of the State while exercising their judicial authority and power.

The Past and Present of South African Law

2004 ◽  
Vol 32 (2) ◽  
pp. 217-236
Author(s):  
François du Bois
Keyword(s):  
South African ◽  
Affirmative Answer ◽  
East India Company ◽  
Dutch East India Company ◽  
Roman Emperor ◽  
Law Of Nature ◽  
The Past ◽  
Cape Of Good Hope ◽  
Law Of Nations ◽  
The Law

In January 1672, nearly twenty years after the Dutch East India Company had established an outpost at Africa's Cape of Good Hope, a case was adjudicated by the rudimentary local judicial body, the Council of Justice, the significance of which was evident even then. The facts were simple. Members of the indigenous population were accused of having robbed and assaulted European servants of the Company. The legal question before the Council, however, was an intricate one. Did it have jurisdiction over the accused and could it apply to them the same law as would have been applied if the roles of perpetrator and victim had been reversed? The prosecutor successfully urged an affirmative answer. Citingthe Roman Emperor Justinian's Corpus Iuris Civilis, he argued that: “Since the law of nature is implanted in all reasonable creatures, the Hottentots cannot be excluded therefrom. They are consequently subject to the law of nature and therefore also the law of nations …”

National Report for South Africa

2012 ◽  
Keyword(s):  
South Africa ◽  
South African ◽  
Legal System ◽  
Common Law ◽  
East India Company ◽  
Dutch East India Company ◽  
Insolvency Law ◽  
Cape Of Good Hope ◽  
British Rule ◽  
The Common

That South Africa has a mixed legal system is aptly illustrated by the origin and current structure of its insolvency law. Roman-Dutch law, including the procedure of cessio bonorum, was introduced when the Dutch East India Company established a presence at the Cape of Good Hope in 1652. The Ordinance of Amsterdam of 1777 is still regarded as the basis of South African insolvency law. The first local insolvency legislation was enacted under British rule. While the 1829 Cape Ordinance introduced some English bankruptcy principles, it retained certain features of the Ordinance of Amsterdam. The English influence was extended in the subsequent Cape Ordinance 6 of 1843 which in turn formed the basis of insolvency legislation in Natal as well as in the former pre-union republics, the Orange Free State and the Transvaal. After unification in 1910, the Insolvency Act 32 of 1916 was passed. It was replaced by the current Insolvency Act 24 of 1936. This legislation does not codify the law of insolvency but applies alongside the common law principles derived from Roman-Dutch law.

scholarly journals "Contributory Intent" as a Defence Limiting Delictual Liability

2017 ◽  
Vol 17 (4) ◽  
pp. 1570
Author(s):  
Raheel Ahmed
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Law Reform ◽  
The South ◽  
Contributory Negligence ◽  
The Law ◽  
Law Of Delict

In terms of delictual liability, the term "fault" generally refers to the defendant's conduct, whereas "contributory fault" refers to the plaintiff's conduct. "Contributory intent" is a form of "contributory fault" and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the "Act"). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of "contributory negligence" (the other form of "contributory fault") only, but in recent times they have applied it to instances of "contributory intent". This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of "contributory intent" as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the "Bill") has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, "contributory intent" as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

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