Browsing Law Research Articles by Title
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De Ville, Jacques (Griffith University, Griffith Law School, Socio-Legal Research Centre, 2007)[more][less]
Abstract: In this article, Desmond Manderson’s book, Proximity, Levinas, and the Soul of Law (2006) is analysed specifically with reference to the accuracy with which it translates Derrida’s thinking into law. Manderson, in a number of instances, invokes Derrida’s thinking as a ‘corrective’ to that of Levinas. The author shows that this invocation by Manderson of Derrida’s texts is selective and does not take account of Derrida’s broader ‘philosophical’ approach. The author points to the differences between, but also the correspondence in the thinking of Levinas and Derrida. He contends that being true to Derrida’s thinking requires that proximity be viewed not as simply making law responsive as proposed by Manderson, but as having a paradoxical structure. The latter would give expression to the distinction that Derrida draws between the conditional and the unconditional. Only if proximity is viewed in this manner will judges be faced with a true responsibility in deciding negligence cases; only then will justice stand a chance. URI: http://hdl.handle.net/10566/381 Files in this item: 1
DeVilleMandersonDerridea2007.pdf (1.236Mb) -
Sloth-Nielsen, Julia; Mezmur, Benyam Dawit (Juta Law, 2010)[more][less]
Abstract: The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child were held in November 2009 and March 2010 respectively. The Committee has considered more reports and issued its first concluding observations. The continued engagement of the Civil Society Organisations Forum with the African Children's Committee offers an example of positive progress towards supporting the implementation of the African Children's Charter. The development of a relatively well thought-out strategic plan for the African Children's Committee's work for the period 2010 to 2014 (with a better level of participation from stakeholders) also offers an advance in the work of the Committee. Despite these, there remains some room for improvement in order to allow the African Committee to achieve its mandate of the promotion and protection of children's rights in Africa. URI: http://hdl.handle.net/10566/791 Files in this item: 1
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du Toit, Francois (Juta, 2000)[more][less]
Abstract: This article investigates the limitation of freedom of testation in terms of the boni mores or public policy from a legal-comparative perspective. The limits imposed by public policy on freedom of testamentary disposition in English and Australian law are analysed, and the limitation of freedom of testation in terms of the good morals in Dutch and German law is investigated. It is proposed that the operation of the boni mores or public policy in these jurisdictions holds valuable lessons for future development in South African law. URI: http://hdl.handle.net/10566/229 Files in this item: 1
Stell LR 2000.pdf (13.72Mb) -
De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself. URI: http://hdl.handle.net/10566/313 Files in this item: 2
DeVille2010MadnessCover.pdf (81.85Kb)DeVilleFoucaultMadness-andLaw2010.pdf (274.1Kb) -
Moosa, Najma (Juta Law, 1998)[more][less]
Abstract: Introduction: Marriage is seen as an institution for, among various objects, the procreation of children. Children in Islam are ideally seen as the fruits of marriage-for mothers as homemakers to love and nurture and for fathers to provide materially, presumably without any distinction between males and females. Sons, however, are specifically perceived as part of the wealth of men. Seventh-century Qur'anic verses of this nature are not interpreted any differently today, even though the situation in society has changed. There are mothers who are unwilling or unable merely to fulfil the role of homemaker, as there are fathers who are unwilling or unable to be the sole providers for their families. Sons become men and daughters become women, and in this way the vicious cycle is perpetuated. These verses also set the scene for the rights of Muslim children and the problems that these rights hold for any legislation, including human-rights instruments, whose provisions might apply equally to children, irrespective of sex and religion. In this paper, though, it is argued that the rights of children in Islam, seen in proper perspective, can be synchronized to conform to the requirements of a new children's code in South Africa (whether in the form of a revised Child Care Act or entirely new piece of legislation) and international instruments, as indeed should be the case the world over. URI: http://hdl.handle.net/10566/648 Files in this item: 1
MoosaChildrenRights1998.pdf (865.8Kb) -
Moosa, Najma (Juta Law, 1995)[more][less]
Abstract: Introduction: The first Muslims had arrived at the Cape from the Dutch colonies in the East Indies (now Indonesia) and the coastal regions of Southern India from anywhere around 1652-1658. Despite having been granted the freedom to practise their religion since 1804, Muslims could not give legal effect to their personal laws for three hundred years as social restrictions and political inequalities prevailed until recently. It is anticipated that the rapid changes taking place in South Africa since the democratic elections of 1994 will rectify this situation expeditiously. URI: http://hdl.handle.net/10566/636 Files in this item: 1
MoosaMuslimPersonalLaw1995.pdf (494.8Kb) -
De Ville, Jacques (University of California Press, 2011)[more][less]
Abstract: This essay enquires into the depictions of Justice through the ages, as well as the myths surrounding these depictions, more particularly in Egypt, Greece, and Rome, as well as in modern times. The essay departs in significant respects from traditional interpretations by seeking to gain from the insights in relation to mythology and the use of symbols provided by psychoanalysis, structuralism, Heidegger’s thinking on Being, and deconstruction. Insofar as psychoanalysis is concerned, of importance in the present context is Freud’s analysis of symbolism in the interpretation of dreams and in myths, specifically insofar as he contends that the symbols employed there almost invariably have a sexual connotation. The approach of Claude Lévi-Strauss is the focus of the detour through structuralism, with Lévi-Strauss challenging certain of the most prevalent ideas in relation to myth, such as that there is some original version of a myth, usually believed to be the earliest version. In the case of Heidegger, of particular importance is his challenge to us “moderns” to not be too quick in our belief that we understand ancient texts or the ancient conceptions of deities. He more specifically places in question the common belief that the gods and goddesses are persons or that they are abstract personifications of concepts. Derrida, in his analysis of the texts of Freud, Lévi-Strauss and Heidegger, further develops the ideas of each of these thinkers, seeking thereby to go beyond the Oedipus complex, beyond the security of structure, and beyond Being. After an analysis of depictions of the goddesses Ma’at, Themis, Dike and Justitia, based on the insights gained in the preceding analysis, the essay concludes with a reading of the blindfold of Justice in her modern guise which seeks to exceed metaphysics. Drawing specifically on Derrida’s analysis of blindness in drawing, it arrives eventually not at the essence, but the an-essence of justice. URI: http://hdl.handle.net/10566/288 Files in this item: 1
DeVilleMythologyImagesJustice2011.pdf (4.882Mb) -
Du Toit, Darcy (Juta Law, 2002)[more][less]
Abstract: Introduction:Thomas Auf der Heyde responded to an advertisement for a position of senior lecturer in chemistry at the University of Cape Town (UCT), the duration of which was 'initially for three years with a possible extension to five years'. On 8 May 1995 he was appointed in terms of a 'three-year contract' which stated that it 'does not carry any commitment to a permanent appointment'. Two other lecturers, both black, were appointed at the same time on similar terms. Just over two years later UCT advertised a permanent position of lecturer in the Department of Chemistry. Auf der Heyde applied unsuccessfully. Both of his abovementioned colleagues were, however, appointed to specially created permanent positions which had not been advertised. Auf der Heyde contended that UCT's failure to appoint him or to renew his fixed-term contract amounted to an automatically unfair dismissal, alternatively, that UCT was guilty of direct discrimination against him, alternatively, that his dismissal was unfair due to UCT's failure to comply with the requirements for a fair dismissal on operational grounds. UCT denied that Auf der Heyde had been dismissed or that it had unfairly discriminated against him. URI: http://hdl.handle.net/10566/671 Files in this item: 1
DuToitLabourLaw2002.pdf (87.85Kb) -
Du Toit, Darcy (Juta Law, 2008)[more][less]
Abstract: Introduction: Although in labour law the term ‘employment relationship’ means more than a contractual relationship, in the vast majority of cases the contract of employment serves as ‘port of entry’ to the employment relationship. In general, its terms (express or implied) will govern the employment relationship except to the extent that they are unlawful or have been superseded by statute or collective agreement. This is the essence of what used to be known as the law of master and servant. URI: http://hdl.handle.net/10566/691 Files in this item: 1
DuToitEmploymentLabourLaw2008.pdf (164.6Kb) -
Van der Merwe, Hermanus J. (University of the Western Cape, 2013)[more][less]
Abstract: The 2013 judgment of the Supreme Court of Appeal in Humphreys v The State has provided a measure of clarity as regards the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The 2013 judgment of the Supreme Court of Appeal in Humphreys v The State has provided a measure of clarity as regards the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The court held that references to “recklessness” on the part of the accused should be approached with caution so as not to conflate the test for dolus eventualis with that for aggravated (or “conscious”) negligence. In more general terms, the judgment also provides guidance as to what constitutes appropriate charges in response to dangerous or irresponsible driving that results in death or serious injury to innocent persons. It is submitted that, in general, the more aggressive prosecutorial strategy of the National Prosecuting Authority towards irresponsible and reckless driving, under which such drivers are now more likely to be charged with murder and/or attempted murder, remains justified (and necessary) notwithstanding the outcome of the Humphreys case. However, through the use of a hypothetical example substantially similar to the Humphreys case, it is argued that, in future, the NPA’s prosecutorial efforts in such cases must be guided by the interpretation of the legal principles of dolus eventualis in Humphreys and by the specific facts of the relevant case. URI: http://hdl.handle.net/10566/733 Files in this item: 1
VanDerMerweIrresponsibleDriving2013.pdf (831.7Kb) -
Sloth-Nielsen, Julia; Mezmur, Benyam Dawit (Juta Law, 2009)[more][less]
Abstract: The 12th and 13th meetings of the African Children's Committee were held in November 2008 and April 2009 respectively. With the African Children's Charter entering its 10th year since entry into force, the real work of the African Committee is now beginning. With the consideration of the first country reports to the African Committee, the benefits of a regionally-specific child rights treaty has begun to become apparent. The recent establishment of a formal grouping of civil society organisations and individuals dedicated to furthering the regional influence of the African Children's Charter (first mooted in 2004!) comes at an opportune time. Despite some of the recurring shortcomings in the work of the Committee, it is hoped that the development of a strategic plan for the Committee's work for the period 2010 to 2014 will lay some of these concerns to rest. URI: http://hdl.handle.net/10566/787 Files in this item: 1
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Albertus, Chesne (Juta Law, 2012)[more][less]
Abstract: ‘We ought to give those who are to leave life … the terminally ill … the same care and attention that we give those who enter life – the new-born.’1 In this article it is contended that terminally ill inmates have a right to palliative care and that the State has a duty to fulfil this right. The number of unsuccessful medical parole applications and recorded natural deaths of inmates is considered as indicative of the problem of terminally ill inmates in South African prisons. It is further contended that the State’s obligation arises from an inmate’s constitutional right to health care and from an increasingly recognised international human right to palliative care. URI: http://hdl.handle.net/10566/410 Files in this item: 1
AlbertusHealthCareInmates2012.pdf (212.2Kb) -
Sloth-Nielsen, Julia (University of the Western Cape, 2005)[more][less]
Abstract: Julia Sloth-Nielsen points to challenges in the correctional system that South Africa's new constitutional democracy was faced with, including the deep-rooted militaristic tradition that needed to be replaced and the transformation in staff representativeness. She discusses various aspects of prison building design, including the still controversial privatisation of two newly built prisons and the prospect that the so-called 'New Generation' prisons may cost far more than originally envisaged. Considerable attention is paid to the development of the 2005 White Paper, which aims to change comprehensively the focus of the sector. The article notes the enormity of the challenges in implementing the philosophy of rehabilitation and reintegration as core objectives of corrections. URI: http://hdl.handle.net/10566/790 Files in this item: 1
Sloth-NielsenPracticeandPolicy2005.pdf (656.0Kb) -
Moosa, Najma (North-West University, 2009)[more][less]
Abstract: Introduction: Polygyny is generally deemed to be incompatible with Western norms of monogamy and equality, and, therefore, discriminatory to women. This article does not debate the merits and demerits of this view, but proceeds from the premise that polygyny as a religious and customary institution, although not commonly practised in South Africa, is recognised both in Islam as religion and in South Africa. Furthermore, given our historical, political and cultural context, it is not surprising that the State has, with a democratic dispensation in place, given full legislative recognition to polygynous African customary marriages and is in the process of doing so for Muslim religious marriages. URI: http://hdl.handle.net/10566/650 Files in this item: 1
MoosaMuslimMarriages2009.pdf (165.8Kb) -
Moosa, Najma (UNISA Press, 2002)[more][less]
Abstract: Introduction: It has been commonly thought that if ethnic, religious and national minorities are allowed to give expression to their respective group attachments, then that should be deemed sufficient protection against discrimination. Equality demands in democracies that all citizens be entitled to similar rights and, there- fore, it was deemed unnecessary for the state or anyone else to treat minority groups any differently. They did not have to be provided with specific group- differentiated rights, such as, for example, language rights that would assist them in expressing their ethnicity, religion or nationality. URI: http://hdl.handle.net/10566/704 Files in this item: 1
MoosaMinorityRights2002.pdf (741.0Kb) -
Mujuzi, Jamil Ddamulira (Juta Law, 2008)[more][less]
Abstract: When the death penalty was declared unconstitutional in South Africa, the government enacted the Criminal Law Amendment Act in 1997 which, amongst other things, stipulated that a person convicted of some of the scheduled offences was to be sentenced to life imprisonment unless there were substantial and compelling circumstances. Many courts interpreted substantial and compelling circumstances in many different, and at times confusing, ways. The Supreme Court of Appeal clarified the meaning of substantial and compelling circumstance in the well-known Malgas case in which it held, inter alia, that courts should not lightly depart from imposing severe sentences, since the legislature had singled out the scheduled offences to be punished severely because they are serious offences. One of the criteria the Court set was that courts should not rely on ‘speculative hypotheses favourable to the offender’ to avoid imposing life sentences. However, recently, in the Nkomo case, the Court held that the prospect of rehabilitation of the offender is a substantial and compelling circumstance to justify the imposition of a lesser sentence. This article analyses rehabilitation as an objective of punishment and highlights the likely challenges associated with the approach the Court seems to be adopting. URI: http://hdl.handle.net/10566/420 Files in this item: 1
MujuziLifeImprisonment2008.pdf (214.8Kb) -
Albertus, Chesne (University of the Western Cape, 2012)[more][less]
Abstract: This paper is aimed at critically assessing the new section 79 of the Correctional Services Act and whether it creates a medical parole system which protects the dignity of inmates and gives due consideration to public safety. URI: http://hdl.handle.net/10566/518 Files in this item: 1
AlbertusMedicalParole2012.pdf (722.4Kb) -
Du Toit, Darcy (Juta, 2007)[more][less]
Abstract: Introduction: No area of South African law is more critical than the prohibition of unfair discrimination, especially in the workplace. Under apartheid, discrimination against workers on grounds such as race and sex was not only permitted; it was legally enforced. In addition, employers had a relatively free hand to discriminate on grounds such as religion, disability or political opinion. No stable economy, let alone a democratic society, can be built on such foundations. The eradication of “unfair discrimination” in the workplace was essential to developing the new employment dispensation envisaged by the Constitution and the Labour Relations Act of 1995 (‘LRA’). Section 6 of the Employment Equity Act 55 of 1998 (‘EEA’) now embodies this objective URI: http://hdl.handle.net/10566/659 Files in this item: 1
DuToitWorkplace2007.pdf (183.1Kb) -
Sloth-Nielsen, Julia (Juta Law, 2008)[more][less]
Abstract: South Africa still has some way to go towards ensuring that children's rights to legal representation and to be heard are fully implemented in relation to judicial proceedings affecting them. Nonetheless, some emerging practices point to an ongoing expansion of the realisation of these rights. This article charts some key developments in law, policy and implementation that constitute such practices. The article also argues that apart from merely serving as the child's voice in the courtroom setting, effective child lawyering is additionally contingent on a commitment to seeking out children in need of services, on an emphasis more broadly on stakeholder relationships in the sector, and a willingness to adjust to changing circumstances. URI: http://hdl.handle.net/10566/785 Files in this item: 1
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De Ville, Jacques (Springer, 2011)[more][less]
Abstract: Michel Foucault provides a radical challenge to the liberal approach to power and law, which is echoed by Jacques Derrida. Important differences exist between the analyses of Foucault and Derrida which should not be overlooked. This essay proceeds on the basis of an awareness of these differences, yet it at the same time attempts to bring these thinkers closer together, with reference specifically to the thinking of Freud. It is often said that Foucault does not offer an alternative to that which he criticises or that his analyses do not provide for a way in which to escape from the effects of power. By specifically focusing on Foucault’s reliance on the notion of ‘play’ in Society Must Be Defended, it is submitted that an ‘escape’ is in fact provided for. The deconstructive reading of Foucault which is presented here attempts to ensure that Foucault does not remain trapped within metaphysics. URI: http://hdl.handle.net/10566/286 Files in this item: 1
DeVilleRethinkingPower-andLaw2011.pdf (584.0Kb)