A legal system nurtured by the Roman law tradition and demonstrating sensitivity to modern social needs and priorities, is typified by the legal system of the Republic of South Africa. The purpose of this article is to examine prominent trends in the South African law of property which provide an insight into the development of judicial approaches and attitudes, appropriate to the modern environment, within the framework of Roman and Roman-Dutch jurisprudence. Possessory remedies, acquisitive prescription and compensation for improvements have been selected as representative aspects of the modern law exemplifying the interpretation of a fundamental legal concept in conformity with policy objectives applicable to different branches of the law of property.
As South Africa makes the slow transformation to a first world economy, as the national states overcome their economic teething troubles, so too must the network of South African trading activity expand. Parties may choose as the proper law of their contract the law of X or Y, or a South African company may export potentially hazardous products to Z. Party B breaches his contract, Party D commits a tort. In either case judgment may properly be obtained abroad and the plaintiff may seek to enforce it in South Africa. May he enforce it, and if so, what defences may a South African defendant raise? One might in all innocence assume that the answer to the questions posed above and thus the criteria for recognising and enforcing foreign judgments in South Africa could be stated without difficulty. Unfortunately for litigants this is not the case. A dearth of authority, conceptual confusion and the paralysing hand of the parliamentary draftsman have transformed the apparently simple into the seemingly intricate. This article attempts to state the law, without misstating the lacunae.
This article reviews the period of the short reign of a constitutionally-minded Chief Justice in a young and democratic African state, of a man of strong conviction and somewhat ahead of his time. It is through the agency of judicial office-bearers like him that the law takes form, particularly in an infant jurisdiction where personalities count more than they do in well-established jurisdictions. The first part of this article contains a brief descriptionption of Botswana and its constitution, followed by a summary and interim evaluation of Chief Justice Hayfron-Benjamin's constitutional law judgments. The second part deals with the Court of Appeal's attitude, the departure of Chief Justice Hayfron-Benjamin, and the jurisprudential issues arising from the Hayfron-Benjamin era.
In Lesotho marriage is a complex issue as the African marriage has had to co-exist with the civil or Christian marriage imported into Southern African by European missionaries and settlers. This has caused confusion with the result that during 1982 in Theko v Theko the Chief Justice held that a man married by custom can validly marry another wife by civil rites and live happily ever after with all these women as his wives. Two things, in particular, were puzzling in Theko' s case, the first that Cotran C J declared the man a "statutory bachelor", and the second that the monogamous nature of a civil marriage had been entirely ignored. Within three months the Court of Appeal had overruled this decision in the case of Makata v Makata. The effect of this collision of ways of life persists nonetheless.
The aim of this article is to analyse in broad outline the changes which a customary marriage in Zulu law has undergone as a result of the new KwaZulu Act on the Code of Zulu Law (hereinafter called the KwaZulu Act). No doubt the KwaZulu Act is not the only factor which has brought about a transformation of a customary marriage; there are others, but it is the greatest single factor that has been responsible for its radical legal metamorphosis. The Act itself is based on a sound social transformation as evidenced by the practices of the people. In order to demonstrate these innovations and their legal implications for a customary marriage in general, it is imperative to sketch the traditional features of a customary marriage and then to point out the changes. Attention will also occasionally be drawn to other changes which were not directly brought about by the KwaZulu Act but which are, nonetheless, legally relevant. The significance of these changes is that they illustrate that a customary marriage is capable of change.
An interesting phenomenon has crossed the statute books of Transkei and while it may not have had any earth-shattering consequences, it has raised the possibility of devastating future effects, culminating in the circumvention of parliament. The incident in question occurred in connection with the new Mental Health Act. This Act was passed by parliament in the normal way, having been assented to by the state president. It was then published for general information in the Government Gazette. The statute did not come into force immediately, however, because it stated that it was only to come into operation on a date to be fixed by the president by proclamation in the Gazette. This legislation can only be unmade by the body that made it either expressly in a new Act or implicitly where a new Act is in conflict with an existing Act.
In this contribution the current legal developments in Bophuthatswana, Botswana, Ciskei, Lesotho, South Africa, South West Africa, Transkei, Venda, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.