Browsing Faculty of Law by Title
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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) -
Kapindu, Redson (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: This research report demonstrates that international human rights law played a quintessential role in the drafting of the Constitution of South Africa, 1996, particularly the Bill of Rights, and that this was more so with regard to socio-economic rights where the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) highly influenced the guarantees of these rights under the Constitution, both in terms of language and content. The role of international human rights law has been even more pronounced in the South African socio-economic rights jurisprudence that has developed since 1994. Courts have referred to and applied international human rights law norms directly. This paper argues, however, that there are some areas where courts have fallen short in their appreciation and/or application of international human rights law. URI: http://hdl.handle.net/10566/232 Files in this item: 1
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De Ville, Jacques (Springer, 2010)[more][less]
Abstract: In this essay the relation between justice and the gift in Derrida’s thinking is explored. The essay shows that an understanding of the ontological difference or the relation between Being and beings in Heidegger’s thinking as well as Freud’s speculations on the death drive are essential to comprehend the ‘concept’ or ‘notion’ of différance as well as the gift in Derrida’s thinking. The analysis points to the complexity of Derrida’s thinking in his contemplation of the relation between justice and law and the need for a broader investigation to understand what is at stake in this regard. An exploration of the gift shows that Derrida’s thinking on justice is not ‘relativistic’ as is often assumed and that the gift can in a certain way function as a ‘guide’ in questions of constitutional interpretation. URI: http://hdl.handle.net/10566/411 Files in this item: 1
DeVilleGivenTime2010.pdf (323.4Kb) -
Combrinck, Helene; Wakefield, Lorenzo (Institute for Security Studies, 2010)[more][less]
Abstract: As anticipated by the drafters of the Domestic Violence Act (DVA), the South African Police Service holds the key to the successful implementation of the Act. Over the past ten years, researchers and independent bodies tasked with monitoring the implementation of this legislation have consistently called for more training for police officials on how to deal with domestic violence. However, the reality is that police officials already receive such training. The question that therefore arises is why these training programmes appear to be ineffective in ensuring compliance with the DVA. A recently completed research and advocacy project found that although the majority of SAPS members interviewed had a basic understanding of the DVA and its key concepts, their ability to apply its provisions in practical problemsolving scenarios was often limited, leading to the recommendation that training methodologies should be more practice-oriented if they are to improve DVA compliance. URI: http://hdl.handle.net/10566/576 Files in this item: 1
CombrinckDomesticViolence2010.pdf (1.122Mb) -
Muntingh, Lukas (Community Law Centre, University of the Western Cape, 2010)[more][less]
Abstract: The Correctional Services Act (111 of 1998) was promulgated in 2004 creating a rights-based framework for South Africa’s prison system. In 2008 the Correctional Services Act was amended by the Correctional Services Amendment Act (25 of 2008). The purpose of this guide is to describe the human rights framework pertaining to inmates in South Africa based on the Constitution, Correctional Services Act and the Regulations accompanying the legislation. Large parts of this Act deal,for instance, with the operations and management of the Department of Correctional Service and do not have a direct bearing on the rights of inmates. URI: http://hdl.handle.net/10566/227 Files in this item: 1
MuntinghCPA2010.pdf (949.5Kb) -
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) -
Powell, Derek (SUN Press, 2012)[more][less]
Abstract: Local government is a mirror of the larger political and economic forces, cleavages and problems that are shaping South African society. It is these deeper fault lines in society, rather than the Zuma government’s turnaround strategy or the 2011 local elections result, which will drive future policy and determine its effects. This is the first lesson of local government reform in all four terms of national government examined in this chapter. In each term, national policy reforms were moulded by shifting political and economic circumstances and larger national interests, not simply by the unfolding logic of the original blueprint for local government in the 1998 white paper. The outcome of eighteen years of policy reform, however, was not the new society imagined in the white paper, but an imperfect transition that is local government today: where peaceful electoral competition coexists with violent public protests, racial group areas endure in fact, even if not in law, pockets of good governance survive amidst systemic corruption and mismanagement, and national policy goals consistently exceed local government’s capacity to deliver them and the economy’s skills base. The second lesson flows from that reality – due to the fact that the problems of local government are so nested in the broader problems of our society, further local government policy reform and sweeping national turnaround strategies are likely to have imperfect impacts on ‘the problem of local government’ in South Africa. URI: http://hdl.handle.net/10566/551 Files in this item: 1
PowellLocalGovernment2012.pdf (198.7Kb) -
Ntliziywana, Phindile (Juta Law, 2012)[more][less]
Abstract: Introduction: The Local Government: Municipal Systems Act 32 of 2000 (hereafter 'the Municipal Systems Act') provides that the municipal manager is responsible for the appointment of staff, other than managers that report directly to the municipal manager (the so-called section 56 managers), in a municipality (s 55(1)(e) of the Municipal Systems Act). This is significant given that the municipal manager is the head of the municipal administration and also the accounting officer for the municipality (s 82(1)(a) of the Local Government: Municipal Structures Act 117 of 1998 (hereafter 'the Municipal Structures Act'), s 55(1) and (2) of the Municipal Systems Act and s 60 of the Local Government: Municipal Finance Management Act 56 of 2003 (hereafter 'the MFMA')). Political interference in the recruitment and appointment processes undermines this framework and has been cited as one of the reasons for the dysfunction at local government (Department of Co-operative Governance State of Local Government Report (2009) 67). URI: http://hdl.handle.net/10566/553 Files in this item: 1
NtliziywanaMunicipalStaff2012.pdf (81.69Kb) -
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) -
Wakefield, Lorenzo (Institute for Security Studies, 2011)[more][less]
Abstract: The Child Justice Act 75 of 2008 mandates the Minister of Justice and Constitutional Development to report annually on the implementation of the Child Justice Act to the Parliamentary Portfolio Committee on Justice and Constitutional Development. On 1 April 2011 a year had passed since the implementation of the Child Justice Act. This article interrogates the annual report presented to parliament on the first year of implementation of the Act, and concludes that it is not possible to accurately assess whether the Child Justice Act was implemented fully during the year, as the statistics provided in the annual report by different departments are unclear and incomparable. The article also reflects those aspects of the Act that have been implemented. URI: http://hdl.handle.net/10566/561 Files in this item: 1
WakefieldChildJustice2011.pdf (1.255Mb) -
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) -
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 Visser, Jaap; Steytler, Nico; Machingauta, Naison (Community Law Centre, University Western Cape, 2010)[more][less]
Abstract: On 3-4 November 2009 the Community Law Centre hosted a seminar entitled “Policy Dialogue on the Future of Local Government in Zimbabwe”. A diverse spectrum of local government practitioners was assembled to discuss issues related to local government in Zimbabwe. The seminar was structured around six critical themes relating to local government, namely socio-economic transformation, local government institutions and elections, local government financing, traditional authorities, local government functions and supervision of local government. Six authors from Zimbabwe prepared and delivered position papers on the above subject matters against the background of comparative comments from South African academics. URI: http://hdl.handle.net/10566/208 Files in this item: 1
DeVisserLocalGovtZimbabwe2010.pdf (2.142Mb) -
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, 2011)[more][less]
Abstract: Introduction: On 15 June 2010 the 99th session of the International Labour Conference (ILC) adopted proposals for a convention, supplemented by a recommendation, on decent work for domestic workers. From this has emanated a draft convention and recommendation, to be debated by member states and representative organizations of employers and workers around the world, from which proposed amendments will emerge. Once adopted by the ILC in 2011, a convention will require ratifying member states to formulate and implement laws or other measures to provide domestic workers with the stipulated protection. URI: http://hdl.handle.net/10566/627 Files in this item: 1
DuToitDomesticWorkers2011.pdf (136.8Kb) -
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) -
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)