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- Volume 14, Issue 1, 1982
Comparative and International Law Journal of Southern Africa - Volume 14, Issue 1, 1982
Volumes & issues
Volume 14, Issue 1, 1982
Author M.K. RobertsonSource: Comparative and International Law Journal of Southern Africa 14, pp 1 –40 (1982)More Less
This article sets out to examine certain aspects of legal popularization. These are (i) conventional methods of promulgation and communication of laws; (ii) conventional beliefs about the extent of popular legal knowledge and what research in other parts of the world has shown; (iii) by reference to the findings of a survey in Durban, the extent of popular legal knowledge and the effects of education, occupation and race on popular legal knowledge. The second half of the article contains proposals for legal popularization by means of the advancement of a theory of what has been termed "preventative law". The fist section considers the definition of preventative law while the second and third outline its practical workings and aims.
The rule against hearsay and the doctrine of res gestae: a comparative analysis of South African, English and Sri Lankan LawSource: Comparative and International Law Journal of Southern Africa 14, pp 1 –33 (1982)More Less
In the jurisdictions of South African, English and Sri Lankan Law, the existing law of res gestae (hearsay) contains many inconsistencies and aberrations which can best be rectified by comprehensive statutory formulation of the scope of different ramifications of the doctrine. In the field of civil law the English Civil Evidence Act of 1968 has significantly extended the purview of exceptions to the rule against hearsay, but there has been no general relaxation of the hearsay rule in South Africa or Sri Lanka. The initiative of the legislature is timely in both countries as a means of imparting greater coherence and symmetry to the law.
Self-determination in the Spanish Sahara: a credibility gap in the United Nations' practice and procedure in the decolonisation processAuthor H.A. AmankwahSource: Comparative and International Law Journal of Southern Africa 14, pp 34 –55 (1982)More Less
It is suggested in this article that the UN should establish as soon as practicable a Council to take over the administration of the Spanish Sahara. It must be mentioned that the UN is not a fourth contestant in the Spanish Sahara dispute. There are the precedents of Namibia and West Iran to follow.
Source: Comparative and International Law Journal of Southern Africa 14, pp 41 –56 (1982)More Less
From a humanitarian point of view, the ANC declaration to the Red Cross, made on 20 October 1980 is commendable. However, there is no prospect that South Africa will consent to the applicability of article 1(4) to the ANC's war of liberation, no matter what proportions it may assume. The fear of the author is that in time the conflicts to this article 1(4) refers will have been fought without the implementation of any humanitarian law. Such conflicts will be fought in a vacuum of humanitarian law which could possibly have been avoided if a more realistic and practical approach based upon the consensus of all parties had been adopted. Article 1(4) is detrimental not only in constituting a "built-in non-applicability clause" but also in its exclusiveness; while it stands it excludes any other formal basis for a negotiated agreement on the humanitarian safeguards to be applied in article 1(4) type conflicts.
Historical development of the American judicial and Swedish administrative approaches to juvenile justiceAuthor Paul LansingSource: Comparative and International Law Journal of Southern Africa 14, pp 56 –78 (1982)More Less
This article attempts to examine historical and sociological interactions which have impacted upon differing societies' attempts to resolve the problem of juvenile disposition through differing methods with different primary goals in the forefront. Then, using the American system of juvenile courts as an example of the judicial objective, and the Swedish system of child welfare boards as an example of the administrative objective, the author shows how each has proposed to come to grips with the problem of juvenile delinquency and crime.
Source: Comparative and International Law Journal of Southern Africa 14, pp 57 –80 (1982)More Less
The purpose of this article is to survey contemporary trends in Canada regarding the concept of fairness, with particular reference to its rationale and scope, the different connotations of fairness in the context of administrative decisions and the relationship between the emergent doctrine and the traditional rules of natural justice in the light of current judicial attitudes. Possible approaches to the problems which remain are assessed, drawing on the experience of other Commonwealth jurisdictions, and some tentative conclusions are offered as to the policy famework of modern Canadian law on the basis of the decided cases.
The future of the law of war: the place of the Additional Protocols of 1977 in customary international lawSource: Comparative and International Law Journal of Southern Africa 14, pp 79 –91 (1982)More Less
To date there has been no official response by South Africa to the emergence of the Additional Protocols of 1977 in customary international law. South Africa did in fact attend the first session of the Diplomatic Conference, but not the subsequent sessions. It is submitted that it is of some importance to make South Africa's attitude to the Protocols known. It is not inconceivable that in time the Protocols may be established as reflecting customary international law. Should South Africa not wish to be bound it would be a great deal easier to assert its rejection of the Protocols now than to dispute their customary character at some later stage.
Author H.H. MarshallSource: Comparative and International Law Journal of Southern Africa 14, pp 81 –91 (1982)More Less
All emergent Commonwealth territories which have been left a legacy of statutes of general application move into independence or republican status with a collection of miscellaneous, possibly archaic and largely unidentified statutes of England forming part of their basic law. Some states have been content to go on for many years in this condition. An extreme case is that of the state of Indiana in the United States of America which, by the provisions of one of its statutes, still has as its basic law the common law of England and the statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of King James the First (with certain exceptions) and which are of a general nature. Many independent Commonwealth countries also still preserve a substratum of statutes of general application; but there are signs of a growing impatience with this collection of uncertain legislation, and action has been taken in some territories to remedy the situation, as mentioned in the article.
Author John HatchardSource: Comparative and International Law Journal of Southern Africa 14, pp 92 –101 (1982)More Less
The question of how criminal law should deal with the intoxicated offender has been the subject of much debate and remains one of the most difficult problems with which courts have had to grapple. At different times the approach has varied considerably. Thus at one stage it was considered that drunkenness could never be an answer to a criminal charge. As was said in the Exchequer Chamber in Reniger v Fogossa. Today intoxication is generally seen as a mitigatory factor but as to which crimes and based on what criterion remains a source of difficulty. This article seeks to review the present law on this topic in Zambia and then to consider its possible future development. The modern law relating to the intoxicated offender stems from the House of Lords decision in Director of Public Prosecution v Beard and this forms the basis of the law on intoxication in a number of common law countries.
Source: Comparative and International Law Journal of Southern Africa 14, pp 92 –121 (1982)More Less
In this contribution the current legal developments in Bophuthatswana, Botswana, Lesotho, Malawi, Mauritius, South Africa, South West Africa/Namibia, Swaziland, Transkei, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.
Source: Comparative and International Law Journal of Southern Africa 14, pp 102 –130 (1982)More Less
In this contribution the current legal developments in Bophuthatswana, Botswana, Lesotho, South Africa, South West Africa/Namibia, Swaziland, Transkei, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.
Volkereg - 'n inleiding, by Hercules Booysen: Book review*; English law and French law - a comparison in substance, by RenÃ© David: Book review**; The limit of the law, by Anthony Allott: Book review***; Droit constitutionnel et institutions politiques, (ThÃ©orie gÃ©nÃ©rale des institutions politiques), Second edition, by Charles Cadoux: Book review****; Delict: principles and cases, by J.C. van der Walt: Book review*****; The law of succession in South Africa, by M.M. Corbett, H.R. Hahlo and Gys Hofmeyr,Source: Comparative and International Law Journal of Southern Africa 14, pp 122 –127 (1982)More Less