Browsing Law Research Articles by Issue Date
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Du Toit, Darcy (Juta Law, 1995)[more][less]
Abstract: Introduction: The small, medium and micro enterprise (SMME) sector spans an immense sweep of economic activity, from entirely non-regulated to entirely regulated businesses, 'from the survivalist activities of informal sector hawkers to high-tech manufacturing enterprises employing fewer than 200 workers'. It comprises, in reality, a multitude of subsectors of different branches of the economy, each with its own specific issues, problems and potentialities. In addressing the issue of industrial relations, it will be neither appropriate nor fruitful to try to deal with this multifaceted 'sector' in its entirety. In the first place, most informal enterprises are conducted by single individuals, families or partnerships and do not involve employment relationships in the normal meaning of the term. In the second place, much informal activity is conducted by unemployed persons seeking merely to maintain themselves until jobs become available. Such enterprises are transient and difficult to target or track for purposes of industrial relations policy. Thirdly, structured collective labour relations as we know them are in many respects premised on the realities of larger workplaces and may be less appropriate to workplaces employing only one, two or a handful of people. URI: http://hdl.handle.net/10566/632 Files in this item: 1
DuToitSMME1995.pdf (101.0Kb) -
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) -
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, 1998)[more][less]
Abstract: Introduction: All women face similar status problems in the private and public spheres of life but it is alleged that, as members of a religious community, Muslim women experience another inequality. This double inequality has resulted in a dichotomy between their public lives governed by secular laws and constitutions, and their private lives governed by religion. To date this conflict remains unresolved in various Muslim and non-Muslim countries. As will be indicated, commercial, criminal and penal codes were easily secularised but personal codes remained governed by religion. Traditional interpretations of Islam govern personal laws and as a result personal law codes conflict with the constitutions of Muslim majority and minority countries. While the constitutions of these countries guarantee equal rights to all citizens, the personal law codes privilege men over women in the areas covered by these personal laws resulting in the inequality of the sexes. There does not, however, appear to be any Islamic justification for this state of affairs. The practice of Muslims today, as opposed to the spirit of equality in Islam as contained in its primary sources, discriminates against women. URI: http://hdl.handle.net/10566/637 Files in this item: 1
MoosaMuslimWomen1998.pdf (703.7Kb) -
Moosa, Najma (Juta Law, 1998)[more][less]
Abstract: Introduction: Conflicts between human rights and religion do exist. Is this true of Islam? The answer is not as simple as 'yes' or 'no'. Although an examination of human rights in an Islamic context will reveal its theocentric rather than secular and judicial basis, this paper asserts that, notwithstanding (later) Islamic law interpretations to the contrary, (original) Islam is compatible with the modern notion of human rights. The fact that some Muslim countries have opted for Western constitutional models because of uncertainty as to what constitutes Islamic constitutional law clearly supports this assertion. On the other hand, because of the Western origin of modern constitutions, countries like Saudi Arabia have no formal written constitution. URI: http://hdl.handle.net/10566/640 Files in this item: 1
MoosaHumanRights1998.pdf (985.1Kb) -
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) -
Du Toit, Darcy (Sage Publications, 2001)[more][less]
Abstract: The paper is concerned with the practical question of the circumstances under which measures which might otherwise have amounted to unfair discrimination will amount to affirmative action and will therefore be lawful. It addressed a number of conceptual issues, including where the affirmative action should be understood as a limitation on the right to equality or the expression thereof; and the differing interpretations of discrimination by Langa DP and Sachs J in City Council of Pretoria v Walker, in both cases preferring the latter approach. Reviewing the relevant case law up to May 2000, it considers whether the approach laid down by the High Court in Public Servants Association of SA v Minister of Justice can survive the promulgation of the final Constitution and the Employment Equity Act. It also doubts whether the requirement of individual disadvantage in respect of affirmative action measures is (still) appropriate and suggest that underrepresentation of groups that suffered unfair discrimination is a prefereble criterion. URI: http://hdl.handle.net/10566/643 Files in this item: 1
DuToitAffirmativeAction2001.pdf (212.2Kb) -
du Toit, Francois (Juta, 2001)[more][less]
Abstract: This article analyses critically the impact of constitutionalism on freedom of testation and its limitation in South African law. It proposes the judicial utilisation of a 'constitutionally-founded boni mores criterion' in addressing particularly testamentary forfeiture clauses and charitable testamentary bequests. URI: http://hdl.handle.net/10566/230 Files in this item: 1
Stell LR 2001.pdf (18.56Mb) -
Moosa, Najma; Karbanee, Shaheena (Law Faculty, University of the Western Cape, 2004)[more][less]
Abstract: Introduction: In Muslim personal law, the husband on pronouncing a divorce has a number of legal obligations towards his wife including maintenance and payment of outstanding dower. While there is no dispute among Muslim scholars and jurists that a wife’s right to maintenance (nafaqa) arises upon marriage as a natural consequence of it, there is no unanimity as to whether this right is extendable after the marriage ends. The position may also vary depending on the circumstances leading to the dissolution and the financial situation of the spouses. This is not surprising, as a basis for conflicting views on particular rights issues can be found in the same corpus of Islamic (common) law or Shari’a. URI: http://hdl.handle.net/10566/638 Files in this item: 1
MoosaMataaMaintenance2004.pdf (891.7Kb) -
De Ville, Jacques (University of Windsor, 2007)[more][less]
Abstract: Drucilla Cornell’s book The Philosophy of the Limit has for a long time been an important reference point in attempting to understand the relation between deconstruction and law. This article examines some of the themes discussed by Cornell in this influential book. The article specifically evaluates the translation of Derrida’s thinking into law as argued for by Cornell and concludes from this reading that Cornell to some extent misrepresents and also unnecessarily “tames” Derrida’s thinking. Instead of leading to the radical transformation of law and society, Cornell’s book gives support to an understanding of the relation between law and justice that is unlikely to have this effect. The article expounds a different reading of deconstruction based on a number of Derridean texts and argues that Derrida’s thinking poses a more radical challenge to law than that presented by Cornell. URI: http://hdl.handle.net/10566/383 Files in this item: 1
DeVillleDerridaLevinasCornell2007.pdf (1.828Mb) -
De Ville, Jacques (Springer Verlag, 2007)[more][less]
Abstract: Sir Edward Coke is known for having played a central role in establishing the power of the common law courts to exercise a supervisory jurisdiction over the executive/administration. Coke is usually praised in the literature for his boldness in doing this, whilst he is at the same time censured for having dared to suggest that this jurisdiction should be a very wide one. This essay questions the inheritance of judicial supervision and enquires whether there may be a secret to uncover in Coke’s texts. Referring to Coke’s Institutes, it is suggested that the wide jurisdiction of the common law courts that Coke advanced, is linked to and should be understood in light of Coke’s pronouncements in the epigrams on law and justice. Judicial supervision, according to this reading of Coke, involves not only a necessarily limited jurisdiction in accordance with law, but also the desire for an unlimited jurisdiction, which corresponds with Derrida’s analysis of justice and law. This reading of Coke, it is suggested, calls on us to view judicial supervision as revolutionary in nature which requires of the courts to fundamentally rethink the way in which they exercise their supervisory function. URI: http://hdl.handle.net/10566/371 Files in this item: 1
DeVilleJudicialSupervision2007.pdf (273.1Kb) -
du Toit, Francois (Juta Law, 2007)[more][less]
Abstract: This contribution focuses on two matters pertinent to the office of trustee. First, the fiduciary nature of the office of trustee is investigated, with particular reference to the essence of a trustee’s fiduciary duty. Secondly, the protection afforded by a trustee’s fiduciary office to trust beneficiaries, particularly contingent beneficiaries, is examined. It is shown that the protection enjoyed by contingent trust beneficiaries is frequently ascribed to their “vested interests in the proper administration of a trust” (which, it is submitted, means that each contingent trust beneficiary enjoys a personal right against the trust’s trustee for proper trust administration as counterpart to such trustee’s fiduciary duty). The question is then posed whether, as some commentators contend, such an interest in or right to proper trust administration allows extending a direct action, through the actio legis Aquiliae, to contingent trust beneficiaries for claiming delictual damages from an errant trustee in breach of trust. URI: http://hdl.handle.net/10566/225 Files in this item: 1
DuToitFiduciaryOffice2007.pdf (430.8Kb) -
De Ville, Jacques (Juta Law, 2007)[more][less]
Abstract: In his recent book, Law and Sacrifice: Towards a Post-Apartheid Theory of Law, Johan van der Walt gives a clear exposition of the possible impact of inter alia Jacques Derrida's thinking on law. In this article, the book is critically analyzed and it is shown that Derrida's texts provide scope for a different interpretation. With reference to a number of themes it is shown that Derrida's thinking is more far reaching than in Van der Walt's model. The unconditional for example plays a vital role in Derrida's thinking while it is almost absent in Van der Walt's model. Van der Walt stresses the need for plurality and the impossibility of reconciliation between different views of the law in a particular case. Such an approach can have conservative political consequences. A different interpretation of Derrida, where the unconditional is more prominent, holds more promise for a post-apartheid theory of law. URI: http://hdl.handle.net/10566/382 Files in this item: 1
DevilleLawSacrifice2007.pdf (409.2Kb) -
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) -
De Ville, Jacques (Springer, 2008)[more][less]
Abstract: This article questions the common assumptions in legal theory regarding Derrida’s well-known Declarations of Independence. Through a close reading of this text, well-known ground such as the relation between speech and writing, the notion of representation, speech act theory, the signature, and the proper name is covered. The contribution that this analysis makes in the present context lies in the additional ‘step’ that it takes. The article seeks to give an explanation of the laws at work in Derrida’s thinking in the above respects and to explain more specifically how they find expression in Declarations of Independence. The article in this regard also investigates the importance and role of the ‘notions’ of death, loss of meaning, loss of ownership, and loss of sovereignty in Derrida’s thinking. The contention is that if we take account of Derrida’s reading in Declarations of Independence, it is possible to view constitutions in a very different way, more specifically their ‘origins’, with inevitable implications for constitutional interpretation. URI: http://hdl.handle.net/10566/360 Files in this item: 1
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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) -
De Ville, Jacques (Springer, 2008)[more][less]
Abstract: In this article the author explores Jacques Derrida’s reading in ‘The Purveyor of Truth’ of Edgar Allan Poe’s ‘The Purloined Letter’. In his essay, Derrida proposes a reading which differs markedly from the interpretation proposed by Lacan in his Seminar on ‘The Purloined Letter’. To appreciate Derrida’s reading, which is not hermeneutic-semantic in nature like that of Lacan, it is necessary to look at the relation of Derrida’s essay to his other texts on psychoanalysis, more specifically insofar as the Freudian death drive is concerned. The present article explores this ‘notion’ as elaborated on by Freud in Beyond the Pleasure Principle as well as Derrida’s reading of this text. It also investigates the importance of the ‘notion’ of the death drive as well as the significance of Derrida’s reading of The Purloined Letter for constitutional interpretation. URI: http://hdl.handle.net/10566/300 Files in this item: 1
DeVilleDerridaPurveyorTruth2008.pdf (299.0Kb) -
De Ville, Jacques (Springer, 2009)[more][less]
Abstract: The Anaximander fragment, in the readings of both Heidegger and Derrida, speaks of that which exceeds positive law. In this article, the author provides a detailed reading of Heidegger’s Der Spruch des Anaximander, showing how Heidegger relates this fragment to his thinking of Being, the latter having been ‘forgotten’ by metaphysics. Heidegger’s reading at the same time involves a contemplation of technology and of the ontological relation of beings to each other. Derrida’s reading of Heidegger’s Der Spruch highlights specifically those parts of Heidegger’s text where that which precedes Being’s gathering, Being’s disjoining or dissemination, is pointed to. This disjoining, Derrida contends, speaks of the gift of a day more ancient than memory itself and ties in closely with certain aspects of the thinking of Marx. Derrida’s focus on that which precedes Being is in turn related to his contemplation of the law or condition of possibility of technology and also of that which makes possible a relation to the other as other. This condition of possibility, or the gift of Being, which Heidegger’s text also speaks of, involves a ‘higher law’ which can serve as a ‘measure’ for the evaluation, interpretation and transformation of positive law. URI: http://hdl.handle.net/10566/301 Files in this item: 1
DeVilleAnaximanderFragment2009.pdf (258.1Kb) -
De Ville, Jacques (Springer, 2009)[more][less]
Abstract: A book review of 'Derrida and Legal Philosophy' edited by Peter Goodrich, Florian Hoffmann, Michel Rosenfeld, Cornelia Vismann, published by Palgrave Macmillan (Basingstoke, Hampshire/New York), 2008, ISBN-13: 978-0-230-57361-1. URI: http://hdl.handle.net/10566/289 Files in this item: 1
DeVilleDerridaLegalScholarship2009.pdf (506.1Kb) -
Du Toit, Darcy (Juta Law, 2009)[more][less]
Abstract: Introduction:Corporate social responsibility (CSR) is a complex topic that has generated a host of policy documents and a vast literature. This article sets out to examine a very specific aspect of it: the impact of CSR as practised by European enterprises in South and southern Africa, particularly in the area of terms and conditions of employment. '[H]ow a company relates to its own people', it has been said, 'will be make or break in terms of its reputation as a corporate citizen. The issues affecting the workplace are wide-ranging and significant. Addressing them can go some way towards bridging the gap between the rhetoric of being 'an employer of choice' and the reality. Conversely, 'how a company treats its people' may be seen as a litmus test of corporate values, pivotal to and emblematic of an enterprise's engagement with its socio-economic environment. In the employment arena, moreover, company policy is subject to close scrutiny and ongoing challenge by labour while, at the same time, employment legislation offers a ready frame of reference. URI: http://hdl.handle.net/10566/631 Files in this item: 1
DuToitSocialResponsibility2009.pdf (182.0Kb)
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