Browsing Faculty of Law by Issue Date
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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) -
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) -
Combrinck, Helene; Wakefield, Lorenzo (Community Law Centre, University of the Western Cape, 2007)[more][less]
Abstract: In recent years, southern African governments have made a number of important commitments on international and regional levels to combat HIV/ AIDS. The subregion has also seen a number of strategic developments such as the drafting and implementation of the SADC HIV/AIDS Policy Framework for 2003-2007 and the appointment by the UN Secretary-General of a Task Force on Women, Girls and HIV/AIDS in Southern Africa.It is now generally accepted that the intersections between gender-based violence and HIV/AIDS are among the most significant of the gendered dimensions of this pandemic. It is noteworthy that the UN Special Rapporteur on Violence Against Women devoted her 2005 thematic report to these intersections. She observed that while some progress is being made separately on ending violence against women and on stemming the spread of HIV/AIDS, national and international efforts would be vastly more effective if they addressed the interconnectness between the two pandemics. URI: http://hdl.handle.net/10566/536 Files in this item: 1
CombrinckGender-Based Violence2007.pdf (284.7Kb) -
Khoza, Sibonile (Community Law Centre, University of the Western Cape, 2007)[more][less]
Abstract: Socio-economic rights are those rights that give people access to certain basic needs necessary for human beings to lead a dignified life. Government and, in certain circumstances, private individuals and bodies, can be held accountable if they do not respect, protect, promote and fulfil these rights Socio-economic rights are especially relevant for vulnerable and disadvantaged groups in society. They are important tools for these groups, who are often most affected by poverty and who experience a number of barriers that block their access to resources, opportunities and services in society. Our Constitution (Act 108 of 1996) provides a number ways for claiming and defending basic needs, such as our socio-economic rights to housing, health care, food and water, which is what this book focuses on. URI: http://hdl.handle.net/10566/254 Files in this item: 1
KhozaSocio-EconomicRights2007.pdf (4.543Mb) -
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 (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) -
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) -
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) -
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) -
Muntingh, Lukas (Institute for Security Studies and the Community Law Centre, University of the Western Cape, 2008)[more][less]
Abstract: Civil society organisations play a key role in assisting prisoners and ex-prisoners to reintegrate into society and may at present render the bulk of such services. It is especially in respect of post-release support services that non-governmental organisations play a critical role as the Department of Correctional Services does not have a strong focus on this aspect of reintegration work. The type of services and activities that civil society organisations engage in has not been documented on a national level. There is thus a need to describe the types of prisoner support and offender reintegration programmes rendered by civil society organisations in South Africa based on up-to-date fieldwork. A survey was conducted of 21 organisations working in the off ender reintegration and prisoner support field. This paper presents an analysis of the results which are based on the views of practitioners working in these organisations. URI: http://hdl.handle.net/10566/237 Files in this item: 1
MuntinghCivilSocietyRole2008.pdf (4.643Mb) -
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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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) -
du Toit, Francois (Juta Law, 2009)[more][less]
Abstract: This article traces the development of the constitutional family in the South African law of succession through a synopsis of Constitutional Court and High Court judgments on the application of the Intestate Succession Act and the Maintenance of Surviving Spouses Act beyond the confines of the traditional conception of 'family'. It also investigates significant legislative developments that impacted on the establishment of the constitutional family in the South African law of succession. URI: http://hdl.handle.net/10566/238 Files in this item: 1
DuToitConstitutionalFamily2009.pdf (195.4Kb) -
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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Chirwa, Danwood Mzikenge (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: The rights to food and basic nutrition have been implemented rather unsystematically in South Africa through a hodgepodge of policies and indirectly by legislation. In view of the dearth of jurisprudence, this paper sought to tease out the meaning of children’s right of access to food as well as their right to basic nutrition, to analyse the significance of, and correlation between, these two rights, and to consider their implications for South African law and policy. URI: http://hdl.handle.net/10566/203 Files in this item: 1
ChirwaChildPoverty2009.pdf (585.1Kb) -
Combrinck, Helene; Wakefield, Lorenzo (Community Law Centre, University of the Western Cape, 2009)[more][less]
Abstract: The inadequate or inappropriate police responses to domestic violence often result from a lack of knowledge of the Domestic Violence Act (DVA) and the National Instruction or from a misinterpretation of the DVA’s provisions. In the interviews undertaken, the central question asked was: ‘Do current training programmes provide SAPS members with the knowledge and skills required to apply the DVA and National Instruction in practice?’ It appeared from the interviews that the majority of the research participants had a basic awareness of the DVA and the National Instruction. However, when it came to the practical application of knowledge in a ‘problem-solving’ scenario, it was notable that the majority of interviewees experienced difficulties when multi-faceted variables were included. It was recommended that more members need training on the DVA, and more frequent and/or more in-depth courses should be offered. Furthermore it was recommended that special attention be devoted to training on domestic violence during the basic six months’ training for new students. URI: http://hdl.handle.net/10566/209 Files in this item: 1
CombrinckDVA2009.pdf (1.059Mb) -
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) -
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) -
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)
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