The purpose of this article was to investigate whether the South African law of delict should recognise a duty of rescue. The method adopted is briefly to set out the general rule of no liability for a mere omission (hereafter the general rule). The various rationales for the general rule were investigated and evaluated for the general rule is really the denial of the duty to rescue except that it goes somewhat wider: it also covers damage to proprietory interests. The arguments favouring a duty of rescue were critically examined and a conclusion on recognition, drawn. The relationship between the duty to rescue and the general rule created certain problems in presenting the material along the proposed lines. Since the duty of rescue is but the somewhat narrower opposite (or negation) of the general rule, no watertight division was possible: an argument in favour of the recognition of a duty to rescue is automatically an argument against the retention of the general rule and vice versa.
The absolute state that emerged from the religious wars in Europe during the 16th and 17th centuries was to undergo a profound transformation. In a long and difficult political, social and legal process it evolved into a constitutional state, that is to say, a state whose structure and functions and whose boundaries in relation to the individual citizen were determined by a legal system based on specific fundamental principles. That constitutional state has over the past two hundred years become the quintessence of many bodies politic, a natural element of our political philosophy. This article includes a review of the development of the constitutional state and its essential features. The article also include a review the development of the constitutional state, What in America was a mere inference from the constitution which was based on many arguments and principles, has been written into the constitution of South Africa and those of other West European countries, such as Austria, Italy, Spain, Portugal, and France. In this way, constitutional jurisdiction has led to the consummation of the constitutional state. It is not only a logic of the constitution and its supreme legal authority, but also a logic of the relationship between the citizen and his state which is regulated by fundamental rights that have been bitterly fought for.
As chairman of the Board of Directors of the Public Employee Retirement Association of Colorado, the author felt compelled to engage in legal research of Colorado law with regard to the South African divestiture issue when the investment committee of PERA was called upon to deal with it in a proposal that required divergence from the direct financial benefits of investment safety and return for retirement security. In the article the author examines the legal basis in Colorado law for the Board's consideration of the 'issue' and offers to the reader a legal rationale for the ruling made by Judge Woodrich and insight as to how the "prudent man rule" in his or her state would apply to the issue if he or she had to face it as a member of a board of directors of a public pension fund.
The decades immediately preceding the Union of the South African colonies in 1910 constituted a vital period in the history of South Africa's legal system. During this time, a number of legal elements began to coalesce, and a new "South African" identity began to emerge. In analysing this development, most commentators have focussed on the way in which the Roman-Dutch law, the official legal system, was influenced by English law and by local demands. But, examination of the legal records of the three decades before Union reveals that American reports and text writers also played a significant role. The focus of this article is on the reasons for the American influence and the manner in which it was exercised.
This article includes a survey of Islamic law by restating its chief ethical principles. According to Islamic law, man is the highest creation of God. He has been endowed with remarkable potential and enjoys freedom of choice and action. The laws of God, revealed in the Quran and exemplified in the Sunnah of the Prophet, is supreme in all cases. It applies equally to the highest and the lowest, the prince and the pauper, the ruler and the ruled. The article explains God as Merciful and being the path of righteousness, whilst the life of the Prophet Muhammad provides a perfect example to follow in the affairs of life. Islam teaches the sanctity of human life and the law of reciprocal rights and duties. It confers dignity, justice and equity upon all without distinction of race or sex or class or nationality.
Although escalating divorce rates are a worldwide phenomenon, the Law Commission has conceded that the South African picture is particularly bleak in this regard. Official concern has also been manifested in recently proposed amendments to the Divorce Act 70 of 1979. The purpose of this article is to suggest that not only is reform an urgent necessity, but that further, a medico-legal rather than a purely legalistic approach might this time be taken to improve South African divorce rules and procedures. Full account needs to be taken of important recent perceptions arising from modern research into familial interaction and other influences upon mental health. The suggestion that the development of divorce guidelines should take more account of recent medical research is of particular importance for cases where one or both spouses are physically or mentally impaired, because divorce-related needs of the ill have been a relatively neglected field in South Africa.
Authors like Alberti, Rogers, Cook, Holt and Soga assisted in tracing the historical background of indigenous law. From the geographical set up it was clear that most of the South Nguni were found in the then independent national states, the Ciskei and Transkei. In these states the legal systems, although similar to the South African legal system, were also independent. According to the author, their tribal customary institutions had not changed. The governments of these states were still attempting to curb theft in these countries. Contact with the west had, in certain quarters, ameliorated the situation while there has been aggravation in other areas. The improvement in the legal systems of the institutions of the blacks might have contributed towards amelioration. Blacks of the 19th century differed from the blacks of the present decade. Of note is the fact that there have been tremendous developments in our Roman-Dutch law as evident from the publication by Hahlo and Kahn. Developments were also envisaged in respect of the legal systems of the South Nguni.
In this contribution the current legal developments in Bophuthatwana, Ciskei, Lesotho, South Africa, South West Africa/Namibia, Venda, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.