South African Law Research Papers (original) (raw)

2025

This article examines the South African approach to the rectification of agreements subject to constitutive formal requirements. It focuses on the rule that such an agreement must first comply with formalities ex facie the document recording it, before a court may consider whether the traditional requirements for rectification have been met. In particular, the primary justifications for this rule are assessed: first, a void agreement cannot be rectified and, secondly, ex facie compliance promotes the functions of formalities. An analysis of South African case law reveals not only that these assumptions are questionable, but that the rule is inconsistently applied and leads to the drawing of tenuous distinctions. A brief investigation of both civilian and common-law approaches suggests further that the South African method is based on a misconception of the purpose of rectification: it conflates the correction of the document recording the agreement with the enforcement of that agreement once it is corrected. This leads to the conclusion that the requirement of ex facie compliance should be abolished as a preliminary step and that a South African court should rather consider whether awarding a claim for rectification would defeat the objects of formalities in general.

2025, ILSA Journal of International and Comparative Law

The question of providing due recognition to E-Wills is not a new one. As industries across the world increasingly rely upon technology during the global outbreak of COVID-19, it should come as no surprise that legal professionals have renewed their interest in the present topic. However, at the outset, we must view the present situation with a simultaneous sense of both caution and excitement. If we keep the technological dangers apart (in arguendo), the present situation opens the door for courts to intervene and to bring about a sudden overhaul of the anciin Family and Succession Law regime in commonwealth nations. But on the other hand, numerous hurdles exist-namely with regard to the recording and testing of the genuineness of an E-Will, for example. India, the most populous and judicially overburdened of them all) move into the uncharted territory of recognizing E-Wills as a necessity. Further, this article addresses how the courts can retain their active role and thus obviate the needfor a legislative process (presumably, a hushed ordinance) in order to formalize the inclusion of digital methodology.

2025, Revolutionizing Wills in Nigeria: The Role of Blockchain Technology in Estate Planning

The traditional process of making and executing Wills in Nigeria is riddled with challenges-fraud, forgery, loss, and lengthy probate delays-that often frustrate beneficiaries. Yet, despite rapid technological advancements, Nigeria's legal framework remains slow to embrace digital solutions in estate planning. This article explores how blockchain technology, with its immutability, decentralisation, and cryptographic security, can revolutionise Wills by ensuring tamper-proof records, automating asset distribution through smart contracts, and significantly reducing probate bottlenecks. By creating a secure and verifiable system that captures a testator's intent while preventing manipulation, blockchain offers a bold alternative to the outdated paper-based model. However, for this innovation to take root, Nigeria's legal and infrastructural landscape must evolve to recognise blockchain Wills as valid. As the digital age transforms industries worldwide, it is time to rethink the future of estate planning in Nigeria-one built on transparency, security, and efficiency.

2024, DOAJ (DOAJ: Directory of Open Access Journals)

2024, South African journal of criminal justice

In Masiya v DPP the Constitutional Court missed the opportunity to address the patently inadequate and unjust common law defi nition of the crime of rape. The Court had an opportunity to embrace its mandate as guardian of constitutional rights and, in adopting a conservative stance towards the development of the common law, failed to do so. Two points of particular interest that arise from the judgment are considered in this article: the Court's unwillingness to extend the defi nition of rape along gender-neutral lines; and the impact of the principle of legality on the Courts' ability to develop the common law defi nitions of crimes. There is no reason in logic or justice for why the defi nition of rape should be gender-specifi c. Furthermore, in line with the minority judgment in Masiya, there is no rule of law that prohibits the Court from executing such an extension.

2024, Considering the Scope of Legal Personality with Special Reference to the Proposition of Rights for Non-human Animals - The Al Shuwaikh Case and its Implications for the Development of South African Law

The treatment of sheep during export processes involving the Al Shuwaikh case has raised questions again about the scope and depth of non-human animal protections in South Africa and in particular the increasingly contested legal status of non-human animals under modern South African law. Currently non-human animals are classified as legal objects/things, and thus deprived of the benefits and protections afforded human animals, who are classified as legal subjects. Legal subjectivity is in turn the exclusive attribute of one who is considered a legal person i.e., a being or entity recognized under law as having legal personality. Fromthis basic distinction and concept in the law, all of the rights duties and capacities of humans and their collective legal vehicles arise. Equally, it is from their lack of legal personality under this legal classification, that non-human animals do not have/bear rights duties and capacities, and as a consequence are subject to the treatment that would otherwise be unacceptable if they were human animals. However, while this fundamental classification might seem to be an absolute in the legal system, the concept of legal personality is in fact a malleable construct, and has in fact changed and been changed through the ages in response to changing social mores of each age. Animal rights activists suggest therefore that one solution for addressing concerns regarding animal welfare would be to extend the scope of legal personality to include non-human animals. While prima face theoretically legally possible, this suggestion has been resisted on a variety of practical and intellectual grounds, thus creating a still contested area of social, and thus by natural extension, jurisprudential debate. Differing perceptions of the full nature and current capacity of the concept of legal personality lie at the heart of the debate/this contestation. Inspired by the Al Shuwaikh case, which serves as a new millennium factual basis/lens through which to beg the question of the exclusive attribution of personality to human but not non-human animals (or indeed other living or non-living entities), this thesis thus revisits the notion of legal personality, tracking its historical development and highlighting its de facto capacity for adaptation over time to respond changing social mores. Key changes and expansions of the construct are isolated, collected and compiled to provide a grounded overview of its larger potential for adaptation. Thereafter, and as a consequence of the aforementioned, the thesis then reflects on the current animal protection regime in South Africa, with due reference to glosses, where appropriate, gained to the perspectives gained from other jurisdictions about the potential for the extension of the concept of legal personality.

2024, S. African LJ

Bois for discussing with me the subject-matter of the paper during its preparation, and to an anonymous research assistant at UCT, but all remaining errors of law, fact and opinion are mine alone. 1 The proceedings are published in A Boyle, C Himsworth, A Loux and H MacQueen (eds), Human Rights in Scots Law (2002). 2 See H L MacQueen and D Brodie, "Private rights, private law and the private domain", in ibid, 141-176. 2 model of horizontality. The Human Rights Act does not say that private parties may enforce Convention rights against each other; rather, the Act makes it unlawful for public authorities to act in a way incompatible with a Convention right, and includes amongst these public authorities courts and tribunals. Thus in deciding disputes between private parties courts and tribunals had to act compatibly with Convention rights, which would include, not only their procedures and remedies, but also their handling of the substantive law being applied in the case. Another section of the Act required courts to read and give effect to legislation in a way compatible with Convention rights. 5 In addition the courts were given power to declare legislation of the United Kingdom Parliament incompatible with Convention rights (but leaving such legislation still in force albeit subject to amendment by Parliament), 6 while under the Scotland Act legislation of the new Scottish Parliament could be wholly avoided if it was incompatible with Convention rights. 7 The full significance of these provisions, and in particular indirect horizontality, was difficult to read in relation to my chosen fields. It was most obvious in relation to the law of delict, in particular the liability of public authorities for harm resulting from their action (or more often, inaction), and also the law of nuisance and defamation; 8 least obvious in the law of intellectual property, although rights of freedom of expression might well have some effect in relation to copyright and the protection of confidential information; 9 and somewhere in between was the law of contract, in which issues about inequality of bargaining power and public policy, especially with regard to employment and consumers, might be able to find a further voice through the application of human rights. 10 Above all perhaps was the protection of privacy, a right recognised by Article 8 ECHR but not as such in the common law of England, and all but invisible also in Scottish jurisprudence. 11 Along the way of the tentative exploration outlined above, I dipped a comparative toe in the South African jurisprudence, noting above all the finding of the indirect horizontality of the Bill of Rights in the Interim Constitution in Du Plessis v De Klerk 12 and academic discussion of what the difference between direct and indirect horizontality might entail; 13 and also some instances where there had been some effect from human rights on the content of the law, particularly in contract, with regard to interpretation and the availability of remedies. 14 But my investigation was very limited and ad hoc. Nor would I claim today to have gone much more deeply into the developing South African law. But I have at least read a little more widely, and been struck by a number of points which I will share with you today. My perspective will be comparative, considering the British (that is, the English and the Scottish) and the South African experiences to date. I will not necessarily be looking to solve any of the problems which exist in the various systems, because, as will emerge, I am not certain that any immediate conclusions can or even should be drawn; but my comments may help to stimulate further discussion and thought in and about them. My first observation is the great difference in context. On 17 February 2003 Mr Justice Albie Sachs of the Constitutional Court gave a lecture in Edinburgh, from which I first fully appreciated what it means to say that the South African Constitution is a constitution for transformation of the country, and the Constitutional Court sees the document and its own jurisdiction as a strong means to this end. This perception powerfully informs the reasoning of the Court in many of the cases I have read, notably the ones on the delictual liability of public authorities and on defamation. Moreover the transformation being sought is not just one in the governance of South Africa, but in the very fabric of society as a whole -in the behaviour and perceptions of all people in South Africa, as both public and private actors. Hence the importance of the extension of the Bill of Rights into private as well as public law. There is a clear (and probably conscious) parallel with the approach of the German Constitutional Court (the Bundesverfassungsgericht), in its establishment in the Lüth case in 1958 15 of the indirect horizontal effect of the Basic Law in private law, against a background where the inter-11 Ibid, 168-71. See further, on subsequent developments, H L MacQueen, "Human rights and private law in Scotland: a response to President Barak", [2003] 78 Tulane Law Review forthcoming; and below, 000-000. 12 1996 (3) SA 850 (CC). 13 In particular A Cockrell, "The Bill of Rights and private law: a threshold issue of 'horizontality'",

2024

In terms of South African criminal law, the concept of common purpose connotes to the legal doctrine that holds individuals liable for crimes that are committed by others with whom they share a common intention or purpose. The validity of this doctrine has been a subject of debate and controversy, with philosophers and legal practitioners arguing that it is a necessary tool for holding individuals accountable for their role in criminal activities, whereas others contend that it can lead to unfair convictions and undermine the principles of individual criminal responsibility. Nonetheless, the doctrine of common purpose is rooted in the idea that individuals who participate in a joint criminal enterprise can be held liable for the actions of their co-perpetrators, even if they did not directly commit the crime in question. This concept is primarily based on the assumption that individuals who share a common purpose or intention are equally responsible for
the consequences of their actions.
Moreover the fact that, critics argue that the doctrine may lead to convictions of individuals who did not actually commit the crime, more particularly, in cases where an individual is present at the scene of a crime but did not actively participate therein, in that case they may still be held liable under the doctrine of common purpose, which could lead to unfair convictions and undermine the principle of individual criminal responsibility and the rule of law, which holds that individuals should only be held accountable for their own action and the law applies equally to all individual who fall subject to it. howbeit, this doctrine can also be problematic in cases where the common purpose is not clearly defined or whee the individuals involved have different levels of involvement or culpability. In such cases it can be very difficult to determine who true perpetrators are and to what extent.
In any event, irrespective of the above-mentioned critics, the doctrine of common purpose remains a valid legal concept under South African criminal law. Thus the courts have established guidelines for its application, which include the requirement(s) that the common purpose must be clearly established and that the individuals involved must have had a shared intention to commit the crime in question. Whereas the doctrine is a valid legal concept in South African criminal law, its application can be problematic and could lead to unfair convictions, it is therefor critical for the courts to carefully consider the facts of each case and to apply the doctrine in a manner that is fair and just, while also upholding the principles of individual criminal liability and the Constitution as the supreme law of the country.
As a result this literature briefly discusses the origins and validity of the doctrine of common purpose under our constitutional dispensation.

2024

South Africa is a secular state with a constitution that guarantees the right to freedom of religion and the right not be discriminated against on religious basis. Over three quarter of a million Muslims live in South Africa today. There has (to date) been no legislation enacted in South Africa that gives effect to Islamic personal law. This article analyses the accommodation of the right of South African Muslims married in terms of Islamic law to inherit in terms of South African law as a result of the developments in the case law and contextual interpretation of the existing statutes by the South African courts. This article first analyses the recent developments and the existing position with regard to the right to inherit under the law of testate succession. This is followed by an analysis of the right to inherit under the law of intestate succession. The developments are then compared to the position in Islamic law of testate and intestate succession. The article concludes with a finding that the developments are not consistent with Islamic law. A recommendation is made that South African Muslims should draft and execute Islamic wills in order to ensure that their estates devolve in terms of Islamic law upon their demise. A further recommendation is made that in line with Section 15(3) of the South African Constitution, the South African government should consider enacting legislation that gives effect to the Islamic law of succession.

2024

Muslims have been living in South Africa for over 300 years. These persons are required in terms of their religion to fol- low Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims are able to make use of existing South African law provisions in order to apply certain Islam- ic laws within the South African context. An example of this would be where a testator or testatrix makes use of the South African common law right to freedom of testation in order to ensure that his or her estate is distributed in terms of the Islamic law of succession upon his or her demise (Islamic will). This would ensure that his or her beneficiaries would inherit from his or her estate in terms of the Islamic law of succession. A potential problem could arise in the event where a beneficiary who inherits in terms of an Islamic will, renounces a benefit. Should the Islamic law or South African law consequences of ...

2024

CHAPTER ONE INTRODUCTION 1.1 Overview of the research 1 1.2 Significance of the research 2 1.3 Current position regarding the topic 2 1.4 Aims of the thesis and research questions 4 1.5 Literature review 5 1.6 Research methodology 9 1.7 Chapter breakdown 9 CHAPTER TWO THE ISLAMIC LAW OF SUCCESSION AND ADMINISTRATION OF ESTATES 2.1 v The table below is used in this thesis for Arabic transliteration purposes. 1 The transliteration is intended to be as close as possible to the Arabic pronunciation. This would assist the reader in identifying the Arabic terms when visiting the Arabic sources. The long vowels as provided in Arabic words would be shortened when the letters 'ic' are connected to it. Islaam would therefore become Islamic. This is done for the purpose of easy reading.

2024

LAW OF TORTS (TA1D) Unit – I | இயல் 1 1. General Principles Origin and Development of Torts: (பொது கொள்கைகள் – தீங்குச்ச்செயல்கள் (தீங்கு/தீங்கியளின்) உருவாக்கமும் மேம்பாடும்:) 2. Definition of Tort தீங்கு வரையறை 3. Distinction between... more

2024, South African Law Journal

This article critically analyses the whistleblower recommendations of the State
Capture Commission and the President of the Republic of South Africa’s response
to implementing these recommendations. Three recommendations are made: ensuring that whistleblowers receive the protections afforded by art 32(2) of the United Nations Convention against Corruption; possibly awarding whistleblowers a proportion of funds recovered, provided the information disclosed has been material to recovering funds; and affording whistleblowers immunity from criminal or civil action arising from their honest disclosures. This article argues that, although these whistleblower recommendations are laudable and will both protect and incentivise whistleblowers to disclose wrongdoing, South Africa should have a consolidated legislative framework to govern whistleblowing in the various sectors rather than the current approach, which scatters the regulation of whistleblowing across many statutes. The article recommends enhancing the protection of whistleblowers and suggests how to structure South Africa’s whistleblower award programme so that it is clear, fair, transparent and efficient. It also argues that to avoid abuse, whistleblowers should not receive blanket immunity from criminal and civil proceedings but that this should be determined on a case-by-case basis.

2024, South African Law Journal

The South African Law Journal is a peer-refereed journal which publishes contributions on all fields of law. It provides a forum for scholars and practitioners, from South Africa and elsewhere, to reflect on issues that are internationally significant and locally relevant. The SALJ aims to be essential reading for those inside and outside South Africa who wish to keep abreast of the development of the South African legal order and its relationship to legal issues internationally. The SALJ is published four times a year.

2024, South African Law Journal

With rapidly growing South African urbanization, mixed-use developments are recognized as the most viable utilization of high-density urban space. In specialized sectional title schemes consisting of one or more multi-unit ownership buildings, there is an increasing need to separate the various components of the scheme according to user and to apply the rules of sectional title separately to each component. In a scheme that comprises a commercial component, for example offices and residential units, there is no reason why all the members of the scheme should be responsible for the maintenance of a lift that serves only a particular component. Similarly, owners of commercial units in a mixed-use scheme should not depend on the co-operation of the other owners if they wish to make rules applying to the toilets used by their clients. Moreover, there is no reason why owners of every component of the building or buildings should not have a separate budget to cover their own expenses. Sin...

2024, ILSA Journal of International and Comparative Law

The question of providing due recognition to E-Wills is not a new one. As industries across the world increasingly rely upon technology during the global outbreak of COVID-19, it should come as no surprise that legal professionals have renewed their interest in the present topic. However, at the outset, we must view the present situation with a simultaneous sense of both caution and excitement. If we keep the technological dangers apart (in arguendo), the present situation opens the door for courts to intervene and to bring about a sudden overhaul of the anciin Family and Succession Law regime in commonwealth nations. But on the other hand, numerous hurdles exist-namely with regard to the recording and testing of the genuineness of an E-Will, for example. The question of the validity of an E-Will in probate cases under the Succession Acts of various common law countries is also an interesting one. This article seeks to move a step ahead from Ghatak by analyzing how two years on from her 2017 publication, the COVID-19 crisis has, in all probability, made major common law jurisdictions (with afocus on India, the most populous and judicially overburdened of them all) move into the uncharted territory of recognizing E-Wills as a necessity. Further, this article addresses how the courts can retain their active role and thus obviate the needfor a legislative process (presumably, a hushed ordinance) in order to formalize the inclusion of digital methodology.

2024, Journal of Political Discourse

Human trafficking in Nigeria persists and has become a grave humanitarian crisis, with individuals exploited for labour and sex work. Rooted in poverty, inequality, and corruption, it undermines human rights and social stability. Women, children, and migrants are especially vulnerable. Amidst this crisis, the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) stands as a beacon of hope. Since its establishment in 2003, it has been at the forefront of combating trafficking through a comprehensive strategy. The institution's efforts encompass prevention, protection, prosecution, and partnership. Through extensive awareness campaigns and community engagement, it educates the public, empowering individuals to recognize and report trafficking. The agency provides vital support to victims, offering shelter, legal aid, healthcare, and rehabilitation services. NAPTIP collaborates closely with law enforcement to apprehend traffickers and advocates for stronger legislation. Furthermore, it fosters alliances with both domestic and international stakeholders to amplify its impact. Despite challenges, NAPTIP's unwavering commitment remains pivotal in the fight against human trafficking in Nigeria, underscoring the imperative of collective action to eradicate this scourge. The paper adopted the institutional theory. Emphasis is made on the need for the prevention of human trafficking through education and awareness, enhanced collaboration and coordination with relevant stakeholders, and the establishment of a unified data-sharing mechanism:

2024

not be responsible in any manner in pursuance of any action including legal on the basis of opinion expressed. While publishing the papers utmost care and caution has been taken by the Publisher, even if any mistake whatsoever noticed,... more

2024

2024, Zeszyty Prawnicze 24.2

Maciej Jońca 1 : Jesteś pierwszą w historii kobietą profesorem prawa rzymskiego na uniwersytecie w Oksfordzie. Jakie to uczucie? Zdajesz sobie sprawę z tego, że nie tylko tworzysz historię, ale już teraz sama jesteś również ważną jej częścią? Helen Scott 2 : Co za początek… Odpowiem tak: to jednocześnie zaszczyt i wielkie brzemię. Czuję na sobie ogromną odpowiedzialność związaną z tym miejscem i z tym stanowiskiem (zapewne każdy czułby się 1 Maciej Jońca-polski romanista i historyk sztuki. Ogłaszane sukcesywnie rozmowy z badaczami oraz popularyzatorami nauk o starożytności wydał w zbiorze: Personae-Res-Actiones. Rozmowy o prawie rzymskim i historii prawa, red.

2024, Potchefstroom Electronic Law Journal

The South African law of delict is traditionally classified as a private-law discipline. This classification is usually made with reference to the actor, power and interest theories. According to the actor theory, private law regulates disputes between nonstate actors inter se while public law regulates disputes involving the state. The power theory maintains that private law regulates disputes between equals while public law brings equality where inequality exists. The interest theory dictates that there are some interests that are individualistic (where private law steps in) while other interests belong to the public at large (the playing field of public law). In this article honouring Prof Willemien du Plessis's contribution to legal history it is argued that none of the above traditional theories of classification can be used effectively to classify the South African law of delict as a purely private-law discipline. Instead, our law of delict fulfils a hybrid role, straddling public and private law, with much transformative potential. Actor theorists fail to account for the fact that the South African law of delict today regulates disputes between non-state actors inter se as well as the law on state liability. The power theory crumbles in the South African law of delict's private-law classification because oftentimes one of the strong reasons invoked to impose liability on a wrongdoer is that wrongdoer's position of relative power over the victim. The interest theory sheds doubtful light on the classification of the South African law of delict because it is difficult to justify how individual-rights infringements are either purely private or public. In the end, relaxing the absoluteness of the claim that the South African law of delict exclusively falls in the domain of private law could assist us in recognising the role that delict could play in transforming South African society in line with constitutional aspirations, fostering the responsible use of power, and working towards the collective wellbeing of our society.

2024, De Jure

This article explores the possible constitutional transformation of a child's delictual claim for loss of earning capacity. As such, it is located at the intersection of the law of delict and child law. The current law on a child's claim for loss of earning capacity is explained first. It is shown that such a claim involves a concurrent violation of the constitutional rights to bodily integrity and property which common-law thinkers call a person's "personal immaterial property". A claim for loss of future earning capacity may be brought by or on behalf of a child in terms of the common law's rules for Aquilian liability. In this regard, it is noted that the assessment of future losses is a controversial legal issue because it necessarily involves speculation about future hypotheticals. While controversial, claims of this nature may be reasonably determined with reference to available evidence. In terms of the law, as it stands, factors that courts consider in quantifying a child's damages for loss of earning capacity include the average probable income, the child's schooling and familial context, wage statistics, and broad judicial discretion. It will be shown that these factors could be applied (and sometimes have been applied) in ways that perpetuate past patterns of exclusion and poverty that are often racially determined-ultimately resulting in some children's claims for loss of earning capacity being pitched below a liveable wage. Relying on the constitutional right to equality and the constitutional best interests of the child standard, it is argued that the common law ought to be developed in this regard to move our law of delict in the direction of distributive justice. In this regard, reference to "liveable wages" and "fairness" (as a consideration in exercising judicial discretion) may be appropriate guidelines used to quantify children's claims for loss of earning capacity in future.

2024, Southern African Public Law

In E v H a husband successfully claimed R75 000 in damages from a man who committed adultery with his wife. On appeal, the Supreme Court of Appeal (SCA) in RH v DE, on the law as it was, held that the husband could have succeeded with his claim for insult resulting from the adultery. However the SCA then proceeded to abolish the delictual claim for adultery on the basis that it was outdated in light of changing social norms. The husband finally and unsuccessfully appealed to the Constitutional Court where the abolition of the claim was upheld but on modified grounds in comparison with those provided by the SCA. In this note I briefly recapitulate (and problematise) the reasoning of the SCA on the common law’s development in so far as it is relevant for purposes of properly appreciating the judgment of the Constitutional Court in DE v RH.

2024, Constitutional Court Review

In this piece I take issue with two seemingly contradictory ways of approaching the South African common law. On the one hand I problematise the trend of 'constitutional avoidance' (the specific brand of constitutional avoidance that I address here will be called 'constitutional heedlessness') reflected in recent case law relating to the development or application of the common law of delict. 1 On the other hand I also caution against, what I will call, 'constitutional over-excitement'.

2024, De Jure

A critique of the South African Supreme Court of Appeal judgment in RH v DE 2014 6 SA 436 (SCA) where the delictual claim for adultery was abolished, primarily for non-constitutional reasons. Or at least, so it seems, at first glance. In truth, constitutional considerations could have and should have played a significant role in the court's reasoning.

2024, International Journal of Human Sciences Research

Using the term “Justice” can lead to
polysemy. However – mainly in the Anglo-
Saxon world – there are connotations of the
term that refer to aspects of distributive justice:
How to distribute burdens, obligations, rights
and prerogatives within society in order to
refer to a “fair” distribution of responsibilities.
Using a criterion or metric for said distribution
becomes relevant. John Rawls and Amartya
Sen have been two reference authors when
dealing with the topic related to the metrics of
justice and have developed their approaches
in a very complete manner. Besides; In the
context of the theories of Human Rights and
Fundamental Rights, the concept of well-being
and quality of life linked to the minimum vital
income connects in terms of material content
with the indicated distribution criteria. For
both domains, a significant aspect is the
object of each model; Both deal with similar
problems, but start from different budgets.
The thesis that I maintain in this essay is that
there are points of agreement that allow us
to present a proposal that links the guiding
criteria of Theories of Justice and Theories of
Human Rights and Fundamental Rights so
that they form part of a Constitution.

2024, The vital minimum as a guiding criterion of distributive justice in the context of human rights theories and the theories of justice of Rawls and Sen (Atena Editora)

Utilizar el término “Justicia” puede llevarnos a una polisemia. Sin embargo – principalmente en el mundo anglosajón – existen connotaciones del término que se refieren a aspectos de justicia distributiva: Cómo repartir las cargas, obligaciones, derechos y prerrogativas al interior de la sociedad para poder referir un reparto “justo” de responsabilidades. Utilizar un criterio o métrica para dicha distribución se torna relevante. John Rawls y Amartya Sen, han sido dos autores de referencia cuando se trata el tema relativo a la métrica de la justicia y han desarrollado sus planteamientos de manera muy completa. Por otra parte; en el contexto de las teorías de los Derechos Humanos y Derechos Fundamentales, el concepto de bienestar y calidad de vida vinculado al de ingreso mínimo vital empalma en cuanto a contenido material con los criterios distributivos señalados. Para ambos dominios un aspecto significativo es el objeto de cada modelo; ambos se ocupan de problemas similares, pero parten de presupuestos distintos. La tesis que sostengo en el presente ensayo es que existen puntos de coincidencia que permiten presentar una propuesta que vincule los criterios orientativos de Teorías de Justicia y Teorías de Derechos Humanos y Derechos Fundamentales para que formen parte de una Constitución.

2024, The Oxford Handbook of Hate Speech, Eds. E. Heinze, N. Alkiviadou, T. Herrenberg, S. Parmar, I. Tourkochoriti (forthcoming, Oxford University Press)

The footprints of historical, jurisprudential, and scholarly records unambiguously indicate that the origins of international mass atrocity crimes can all be traced back to their conceptual, linguistic origins. Within this constellation, the phenomenon of hate speech occupies one of the most unsettled and contested areas in international legal theory and practice. Though not established in international criminal law as a substantive crime or mode of liability, the many faces of hate speech reveal themselves in numerous ways as evidence of the genocidal and persecutory intent of their speakers. This chapter offers an overview of the nature, position, and role of hate speech in the context of international mass atrocity trials at the International Military Tribunal at Nuremberg, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, and at the International Criminal Court. The chapter ultimately demonstrates how a pragmatic prosecutorial approach to hate speech evidence can effectively be used and argued as evidence of genocidal and persecutory mens rea, even without the customary references to the specific psychological component of hate, introducing the contextual interpretation of each individual speech act.

2024

It is human nature to look for a simple solution to a difficult problem. I have been trying to find such an answer to a question that vexes me: Would it be possible for a law faculty to establish which applicants are most likely to succeed in their LLB studies; that is, what criteria could be developed to predict which applicants would obtain their LLB degrees in the minimum time (four years)? In a time of diminishing state subsidies and pressure on universities to improve the pass rate or 'throughput' rate of students, it seems prudent to attempt to answer this question. Previous research has identified an array of variables that have an effect on or act as a predictor of performance at university. These include age, race, gender, cognitive aspects (such as motivation, patience, persistence, self-confidence in functioning independently), high school background, * I thank Pam Watson and the SALJ's anonymous referee for their very valuable comments and suggestions. Any errors and omissions remain my own.

2024

What is hate speech and what is an open speech are still subject to wider intellectual and academic debate. What is at issue is the criminalisation of hate speech and how the law looks at it. Since it was entrenched in the constitution “hate speech” has been manipulated by political class as a weapon to threaten the opposition but in substance the law courts have not managed to prosecute hate speech charges brought before them with success. Perhaps lack of evidence, proof, and whether hate speech is interpreted as a criminal offence. This article aims to discuss the jurisprudence of hate speech in the laws of Kenya and its practicality in the judicial authority.

2024, South African Law Journal

2024

The switch from contributory to comparative negligence is thought to have been motivated primarily out of a concern for justice. We offer a different perspective. Language in state supreme court decisions suggests that some judges thought the switch would reduce appeal rates. We hypothesize that courts were more likely to make the switch when their appellate caseloads are relatively high. To examine this, we estimate hazard models, showing that states with appellate courts where caseloads grew relatively faster made the switch more quickly, and the effect was more pronounced for the switch to the pure, as opposed to the modified, form of comparative negligence.

2024

aan my seun Frans, vir sy geloof "Ln my, sy ondersteuning en onhewustelike hesieling.

2024

http://scholar.sun.ac.za would like to thank dr Roland Braun, dr Dietrnar BuBman and the staff of the Information Technologies department for patiently handling all problems connected with computer illiteracy on my part. Mr Klaus Zimmermann and the administrative staff also played an instrumental role in making my stay at the institute as comfortable as possible. Many friends and colleagues have contributed to the content of this dissertation, by reading and commenting on parts of it, by bringing to my attention valuable pieces of literature and/or making suggestions as to interesting courses of inquiry. I appreciate the contributions of all of them. In particular, I would like to thank professor Lourens du Plessis, professor Sophie Pirie-Clifton, dr Loammi Blaau-Wolf, dr Christoph Benedict, dr Dagmar Richter, mr Vladimir Djeric, mr Mattias Sahinkuye, dr Sabine Pittroff, ms Carin Visser, dr Erika de Wet and mr Thilo Grutschnig, who all invested a considerable amount of time and energy in my research and writing endeavours. I am, furthermore, grateful for the continued interest in my progress and the extraordinary support provided by the fellow doctoral students and members of the doctoral research unit at the Max Planck Institute. The members of the Research Unit for Law and Constitutional Interpretation of the Universities of Stellenbosch and the Western Cape should also be thanked for their contributions in evaluating, criticising and commenting upon parts of the research. In particular, I would like to thank mr Duane Gallie for his assistance in drawing up the bibliography, and ms Annette King for logistic assistance. A special word of thanks is reserved for mr Peter Mullineux, for editing the text and ironing out some linguistic difficulties, and for mr Peter McAlister-Smith, who patiently shared his knowledge of the English grammar and writing style with me. My husband, Rainer Nowak, went through every painful step and every joyous leap of the research and writing process with me, even at times when he was under immense personal or professional pressure himself. I realise that it could not have been easy enduring me and my dissertation at all times, and I appreciate it that he nevertheless did not withdrew his support at any point. I hope that it is possible for us to make up the time we have lost because of this project in years to come. Likewise, when it came to family matters, my parents, Eugene and Rettie Mostert, probably would have preferred to have a less absent and a less absent-minded child. However, they never expected anything of me but that I do that to which I have set my mind. They supported me in 3. Public interest, common weal and public purposes 16 3.1. Public interest and common weal in the constitutional context , , 17 3.2. Public interest, public purposes and the property clauses 18 3.2.1. Public interest, public purposes and expropriation 19 3.2.2. Public interest, public purposes and land reform 4. The relationship between property and public intcrcst.

2024

Limitations in terms of legislation Section 1 of the South African Constitution, 1996, states that '[t]his Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.' Section 9(4) read with s9(3) of the Constitution prohibits 'unfair' discrimination based on 'one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.' Statutory limitations are also found in the Maintenance of Surviving Spouses Act (27 of 1990); Pension Funds Act (24 of 1956); the Immovable Property Act (94 of 1965); and the Trust Property Control Act (57 of 1988). Discriminatory provisions found in wills have been challenged in a number of court cases since the introduction of the new constitutional dispensation in South Africa. We look at six cases in this article. Four of the cases deal with discriminatory provisions found in wills that applied in the public sphere (public wills) and the remaining two cases deal with discriminatory provisions found in wills that applied in the private sphere (private wills). The first four cases deal with public wills. They are important as they are the first cases in the South African context to challenge discriminative provisions found in wills. The remaining two cases are more recent and deal with private wills. Case law involving discriminatory provisions found in wills The first case looked at is Minister of Education and Another v Syfrets Trust Ltd NO and Another 2006 (4) SA 205 (C). The judgment was handed

2024, Journal of International Criminal Justice

On 28 June 2005, the Supreme Court of Canada rendered a decision in Mugesera, bringing to an end the decade-long legal saga involving a speech made by Leon Mugesera in November 1992 in Rwanda. While the decision of the Supreme Court was handed down in the context of an immigration case, its impact will be mostly felt in the realm of criminal law, as the court embraced international jurisprudence for the international elements of crimes against humanity. In addition, the decision is important for three reasons: it (i) clarified the interrelationship between international and domestic criminal law; (ii) examined the notion of hate crime; and (iii) analysed the concept of inchoate crimes. * Senior Counsel and Manager of the Law, Crimes against Humanity and War Crimes Section, Department of Justice, Canada and part-time professor in International Criminal Law at the University of Ottawa Faculty of Common Law; the author has provided legal advice in the Mugesera matter since 1995. The opinions expressed in the article do not necessarily represent the positions of the Department of Justice or the government of Canada.

2024, SSRN Electronic Journal

2024, South African Law Journal

Despite the fact that the Constitution explicitly protects the right to freedom of scientific research, this right features neither in the preamble to any legislation, nor in any reported case law. If the right to freedom of scientific research remains in obscurity, South Africa could slip into totalitarian control of the scientific enterprise, to the detriment not only of scientists, but also of society in general. The right to freedom of scientific research should play a more central role in policy-making. This is not only because it is an enumerated constitutional right, but also because it is important in its own right, as it serves purposes that are at the core of our constitutional value-system: promoting individual autonomy, facilitating the search for truth, and supporting democracy. The right to freedom of scientific research is unique in protecting not only the exchange of scientific thoughts and information, but also in particular the physical activities entailed by scien...

2024, South African Law Journal

Whether human biological material (‘HBM’) in the research context is susceptible of ownership is contested, yet under-investigated. This situation leads to legal uncertainty for local scientists and their international collaborators. This article presents a comprehensive analysis of the topic — investigating both common law and statutory law — and concludes that HBM in the research context is indeed susceptible of ownership. First, since the common law is dynamic, it should recognise the reality that HBM has become useful in the research context and should therefore treat HBM in this context as susceptible of being owned. This aligns with the general trend in comparative foreign case law. Secondly, since relevant statutes consistently use the legal-technical term ‘donation’ to denote a situation where HBM is provided by a research participant to a research institution for the purposes of research, the transfer of ownership in the donated HBM from the research participant to the rese...

2024

Master of Law in Constitutional Law. University of KwaZulu-Natal, Pietermaritzburg 2018.No abstract provided

2024, Pretoria student law review

15 CPA (n 6 above). 16 The Constitution (n 14 above) sec 2. 17 Sec 36(1) of the Constitution; See general discussion in S v Makwanyane and Another CCT3/94 1995 ZACC 3 (thereafter 'Makwanyane'). 18 Search warrants, entering of premises,... more

2024, Pretoria Student Law Review

This research will thus consider whether or not section 22 of CPA is inconsistent with the spirit, purport and object of the Constitution. To provide a brief overview of this paper; the introduction will illuminate the aim of the research followed by an examination of what constitutes ‘search’ and ‘seizure’ in terms of CPA. The paper will thereafter consider the existing jurisprudence on search and seizure operations and elucidate the manner in which search and seizure operations affect certain rights in the Bill of Rights. An examination of search and seizure operations under Canadian law will be conducted with the paper culminating in a conclusion containing recommendations regarding the enforcement of search and seizure operations.

2024

If I am getting ready to speak at length about ghosts, inheritance, and generations, generations of ghosts, which is to say about certain others who are not present, nor presently living, either to us, in us, or outside us, it is in the name of justice. Of justice where it is not yet, not yet there.. . .It is necessary to speak of the ghost, indeed to the ghost and with it.. .. Jacques Derrida1 Spectres. . .. are apparitions appearing in the present, coming out of the past, yet pointing always and only to the future. Spectres show us with special vivacity the structured temporality of the spiritual. Drew A. Hyland 2

2024, Social Science Research Network

Although already the US Constitution and the Déclaration des droits de l'homme et du citoyen also deal with property and ownership.

2024

This note is a joint venture between a student in his third year of studies at the University of Pretoria Faculty of Law and someone who has been teaching law in that Law Faculty since 1999. Several conversations about the need for... more