Browsing Faculty of Law by Title
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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) -
du Toit, Francois (Elsevier, 2013)[more][less]
Abstract: This article examines the fundamental rule of South African trust law that co-trustees must always act jointly in regard to trust administration. It highlights the rule's foundation, but also contextualizes some of the practical problems associated with the rule's operation. In particular, the article focuses on South African courts' treatment of the joint-action rule, and shows that judicial engagement with the rule has not been satisfactory in all respects. The article casts some light on possible future developments in regard to co-trusteeship in South African law. URI: http://hdl.handle.net/10566/620 Files in this item: 2
duToitCo-trustees2013.pdf (113.6Kb)DuToitCo-trusteeship2013.pdf (216.6Kb) -
Wakefield, Lorenzo (Queens University, Belfast School of Law, 2011)[more][less]
Abstract: Article 40 of the United Nations Convention on the Rights of the Child1 requires states parties to take appropriate measures to ensure that children accused of committing offences are treated in a manner that would ensure that their best interests are upheld. South Africa2 ratified the CRC in 1995, the provisions of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the Constitution stipulates that children may not be detained, except as a measure of last resort and, should they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies with the international standards set by the CRC (15 years after SA ratified it); the general comments by the United Nations Committee on the Rights of the Child 3 and other non-binding, yet persuasive instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant steps to comply with its international obligations when it domesticated the CRC in relation to children who commit offences. URI: http://hdl.handle.net/10566/598 Files in this item: 1
WakefiledChildJusticeAct2011.pdf (228.2Kb) -
Wakefield, Lorenzo; Assim, Usang Maria (Juta, 2011)[more][less]
Abstract: The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child took place at the African Union Commission Headquarters in Addis Ababa, Ethiopia, in November 2010 and March 2011, respectively. This article provides an overview of these sessions, together with the Civil Society Organisations Fora that preceded these sessions. These sessions featured significant developments in the work of the Committee. The first relates to a new collaboration between a network of five non-governmental organisations and the Committee to promote the work of this treaty body. Secondly, the Committee delivered its first communication, finding against the government of Kenya in regard to the right to nationality (amongst other rights) of Nubian children in Kenya. These two activities are major highlights for the Committee in the execution of its mandate. It is argued that, despite the challenges faced by the Committee, it is at the threshold of a new era through which it may be established as a significant regional human rights treaty body. URI: http://hdl.handle.net/10566/546 Files in this item: 1
WakefieldAfricanCommitteeExperts2011.pdf (235.4Kb) -
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, 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) -
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 (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 (Franz Steiner Verlag, 2009)[more][less]
Abstract: In this article, the author proposes a reading of 'Force of Law' from two angles: boundless desire and the ‘law’ of language. The author contends that an analysis from these perspectives casts new light on the notion of the ‘mystical’, as well as repetition, singularity and good/evil as they appear in Derrida’s text. In exploring the ‘notion’ of desire, the article focuses specifically on Derrida’s analysis of Freud’s Beyond the Pleasure Principle in To Speculate – On Freud where the death drive is explored. The author shows the importance of this essay for an understanding of the relation between justice and law. The mystical and justice, the author contends, is to be understood with reference to the death drive, and repetition or law enforcement as its return. Law enforcement could also be viewed in terms of the ‘notion’ of iterability in Derrida’s texts on language. These perspectives furthermore allow for an understanding of singularity in terms of unconditionality and of justice as beyond good and evil. URI: http://hdl.handle.net/10566/302 Files in this item: 1
DeVilleForceofLaw2009.pdf (341.8Kb) -
Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L. (Cambridge University Press, 2011)[more][less]
Abstract: The right to non-discrimination for all children is established in international human rights law. International children’s rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children’s rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children. URI: http://hdl.handle.net/10566/577 Files in this item: 1
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Wakefield, Lorenzo; Murungi, Nkatha L. (Pretoria University Law Press, 2011)[more][less]
Abstract: International law approaches the right to education for children with disabilities in a rather generic way. This means that the rights of children with intellectual disabilities have to be gleaned from the general provisions of the conventions. In view of the centrality of intellectual capacity in the context of education, it is imperative to decipher the import of the right to education for children with intellectual disabilities. For this purpose, this chapter explores the content of international law on the right to education of children with intellectual disabilities. It uses two case studies to assess the approach of African states to the domestication of the obligations in this regard. Kenya and South Africa have both ratified the CRC, ACRWC and the CRPD. Further, Kenya has ratified and South Africa signed the International Covenant on Economic, Social and Cultural Rights (CESCR). URI: http://hdl.handle.net/10566/545 Files in this item: 1
WakefieldIntellectualDisability2011.pdf (134.2Kb) -
Chenwi, Lilian; Tissington, Kate (Community Law Centre, University of the Western Cape, 2010)[more][less]
Abstract: To make sure that service delivery is effective and has a positive impact on people’s quality of life, it is important to have meaningful engagement between communities and the government. South Africa’s Constitution makes provision for individuals and communities to take part in service delivery processes and decisions. This right is important in the fight against poverty, inequality and marginalisation. Some people do not know that their right to participate is protected in the Constitution, in South African legislation and in international law. They also do not know the key principles about meaningful engagement set out by the courts, especially the Constitutional Court. This booklet focuses mainly on the right to housing when it explains the objectives, subject and process of meaningful engagement. URI: http://hdl.handle.net/10566/228 Files in this item: 1
ChenwiCommunityParticipation.pdf (190.6Kb) -
Erfregtelike onwaardigheid: Enige lesse te leer vir die Suid-Afrikaanse reg uit die Nederlandse reg?du Toit, Francois (Juta, 2012)[more][less]
Abstract: The regulation of unworthiness to inherit in Book 4 of the (new) Dutch Civil Code (2003) occasioned numerous interpretation and application challenges to Dutch courts, notaries and inheritance scholars. These challenges correspond greatly with many of the contentious issues regarding unworthiness to inherit in modern South African law. This article investigates certain aspects of the Dutch legal position with a view to commenting on, and suggesting solutions to, corresponding challenges in the South African context. Issues such as the effect of unworthiness to inherit on matrimonial property claims as well as maintenance claims against a deceased estate, the suitability and appropriateness for South African law of a “forgiveness provision” that eliminates unworthiness similar to the one included in the Book 4 of the Dutch Civil Code and the regulation of unworthiness to inherit in the context of euthanasia are analysed from a legal-comparative standpoint. URI: http://hdl.handle.net/10566/423 Files in this item: 1
DuToitDutchCivilCode2012.pdf (383.2Kb) -
Muntingh, Lukas (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: In the past 15 years much research has been conducted on the prison system in South Africa focusing on governance, law reform and human rights. It is, however, of particular concern that the voices of prisoners and ex-prisoners had not been heard in the current discourse. This marginalisation of prisoners’ views is in all likelihood symptomatic of their marginalisation in broader society. This research project gathered information from ex-prisoners about their experiences during and after imprisonment. URI: http://hdl.handle.net/10566/231 Files in this item: 1
MuntinghExprisonersViews2009.pdf (309.7Kb) -
Fessha, Yonatan Tesfaye (Centre International de Formation Européenne, 2012)[more][less]
Abstract: The history of federalism in Africa is a history of ambivalence. In the run up to independence, federalism was an idea that galvanized several political movements that, following the retreat of colonial powers, emerged to represent the interest of ethnic groups that were anxious about their political status in post colonial Africa. But it was also an idea that was subsequently rejected by those that wield state power and thrown into historical dustbins. Recent developments indicate that the federal idea that was never given a chance to develop and was being strangled at birth is now re-entering the constitutional scene of several African countries. This short article examines how African federations have responded to the ethnic diversity that characterizes their societies. In particular, it examines how the territorial autonomy solution, implicit in these federations, have helped to deal with the challenges of ethnic diversity. URI: http://hdl.handle.net/10566/534 Files in this item: 1
FesshaEthnicDiversityAfrica2012.pdf (203.3Kb) -
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)