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- Volume 18, Issue 3, 1985
Comparative and International Law Journal of Southern Africa - Volume 18, Issue 3, 1985
Volumes & issues
Volume 18, Issue 3, 1985
Author AndrÃ© E.A.M. ThomashausenSource: Comparative and International Law Journal of Southern Africa 18, pp 297 –319 (1985)More Less
The author argues that it would be totalitarian to undertake the forced achievement of total integration in South Africa in ethnically and otherwise distinctly divided societies in the country. Apart from many other considerations against it, such a plan would result in severing the individual from his natural ties. The preservation of the cultural dimension of constitutional law is being recognised as a most important, new task in comparative constitutional law. Without this cultural dimension of the "Kulturverfassungsrecht", societies in the world of mass technology will be easily manipulated and, therefore, politically unstable. Total integration may be seen as the advent of Caesarism. The comparison of laws dealing with ethnic and group conflicts shows that these conflicts are legally expressed in the conflicting purposes of the right to free movement and the right to the protection of the integrity of communities. The common object of these two equally important rights is territory. The successful harmonisation of the conflicting principles therefore requires adequate spatial management. To be adequate in modern times, no policy can be without the democratic involvement of the people concerned.
Author G.L. PeirisSource: Comparative and International Law Journal of Southern Africa 18, pp 320 –342 (1985)More Less
Striking developments relating to the law of privilege have taken place in recent times throughout the Commonwealth. Judicial initiative has resulted in a transformation of the scope of crown privilege which has required reappraisal in the light of contemporary trends centred on the rapidly expanding frontiers of state acitivity. While extension of the law has been affected for the most part by the cautious use of analogy, traditional attitudes have been modified and in some areas discarded in keeping with the needs and priorities of a different age. Apart from the exclusionary principles forged in the setting of crown privilege, one of the innovative features of commonwealth law pertains to the imaginative development of a head of public interest privilege based on the preservation of confidentiality in the context of fiduciary relationships. The distinguishing characteristic of this rubric of the law of privilege is that the claim of confidentiality is asserted not on behalf of the executive branc of government but by one of the litigants. Although there is slender support for the denial of a public interest privilege conceived in these terms, the balance of modern judicial authority in the Commonwealth explicitly recognises gradations of public interest privilege which are not catered for by the structural framework of the traditional law. The purpose of this article is to examine some selected aspects of the emerging law in relation to central policy objectives.
Author P.D. GlavovicSource: Comparative and International Law Journal of Southern Africa 18, pp 343 –360 (1985)More Less
Large sections of South Africa's population live in primitive areas and are, of necessity, more concerned with the present generation's day to day problems of survival than with more remote wilderness values. Ultimately, in the future, as in the USA, there will be a general awareness and acceptance of the need to establish and protect wilderness areas in South Africa. But the pressures of over-population and technological advancement are such that we no longer have the time to await such an evolutionary development. In the USA public awareness and pressure produced the necessary legal change. In South Africa a reversal of roles is necessary - the function of the law in this context should be to encourage and foster public awareness, to give direction and leadership and, where necessary, to enforce protection of our wilderness areas. Appropriate legislation can serve as an instrument for reform of attitudes. It is for this reason that it has been argued that there is a need for legislative adoption of a conservation ethic.
Author C.R.M. DlaminiSource: Comparative and International Law Journal of Southern Africa 18, pp 361 –376 (1985)More Less
The KwaZulu Act on the code of Zulu law drew wide-ranging comment. In an article on this Act and its influence on the status of Zulu women and on ilobolo, Hlophe raised certain issues addressed in this article. Among other things Hlophe advocated the abolition of ilobolo in Zulu law because he is of the opinion that the changed socio-economic conditions in the black community no longer justified its retention. He also contended that it no longer served the function of a guarantee of good treatment of the spouses and consequent stability of the marriage, but rather occasions other social problems like delaying marriage and thus promoting seduction, concubinage, and the procreation of illegitimate children. It was not feasible to deal exhaustively in this article with all the issues raised by Hlophe. Particular emphasis were placed on the proposed abolition of ilobolo owing to the popularity of this institution in the black community. This present article is a modest attempt to contribute to the resulting debate on the issue of ilobolo as argued by Hlophe.
Author Erwin SpiroSource: Comparative and International Law Journal of Southern Africa 18, pp 377 –384 (1985)More Less
This article uses comparative law to challenge the justification of the assumption of a contrary "rule" by the judge in Voest's case which, however, he was unable to "find". There is, as pointed out in the article, no statute law in the Republic which requires judgments to order payment in South African currency only. While in terms of section 2(1) of the Currency and Exchange Act 9 of 1933 loans in former money may at the option of the debtor be repaid in money which is legal tender at the time of payment, section 14 of the South African Mint and Coinage Act 78 of 1964 provides, as regards contracts, etc made in the Republic relating to money, for the execution in money which is current and legal tender, but expressly reserves the right to stipulate for money in a foreign currency. The Reciprocal Enforcement of Civil Judgments Act 9 of 1966, which, however, is not yet in force, provides in section 3(2) that where any amount payable under a judgment to be registered is expressed in a currency other than the currency of the Republic.
Author Adrienne van BlerkSource: Comparative and International Law Journal of Southern Africa 18, pp 385 –395 (1985)More Less
A recent decision of the Botswana Court of Appeal is of considerable interest in the constitution-making that is part of the decolonisation experience in Africa. It deserves the attention not only of other African countries which acquired constitutions containing fundamental rights provisions in either identical or near-identical language, but also of those bent on fashioning a new political dispensation in Africa in the future. Independence for Botswana came in the September of 1966 when this small country (Bechuanaland) became the independent Republic of Botswana. The move - virtually an overnight one - from authoritarian colonial rule to the new political and constitutional dispensation was a courageous and bold one. By it this country took, as it were, a leap from the known to the unknown, making it in the words of one author part of a "brave new world".
Author Bojosi OtlhogileSource: Comparative and International Law Journal of Southern Africa 18, pp 396 –403 (1985)More Less
Until recently, no special provision was made in Botswana for dealing with juvenile delinquents, it being left to the courts to protect their particular interests. In 1981, the legislature intervened by enacting the Children's Act. As in many other societies, juvenile delinquency has always been with us, but it has until recently not constituted a community problem. It became such when following upon the country's independence, social and economic changes set in - among them a rapid process of urbanisation - and the traditional methods of dealing with family and community problems were subjected to considerable strain. To a large extent, today's problem of juvenile delinquency can be attributed to an educational system which somehow failed to respond to our youth's needs. Its weakness has recently been recognised by the Presidential Commission of Economic Opportunities, and, in parliament, has been related directly to juvenile delinquency. Two factors in our educational system in particular, have contrubuted to juvenile delinquency in Botswana: free education at primary school level and the disintegration of the brigades' system.
Author Victor S. MackinnonSource: Comparative and International Law Journal of Southern Africa 18, pp 404 –409 (1985)More Less
It is clear that in the collective mind of the South African government, although the views of scholars such as Arend Lijphart on consociationalism may be currently Ã la mode, the views of A V Dicey, also still prevail. Thus the government considers that, even as regards a tri-cameral parliament which has moved away somewhat from the 'Westminister' model, the 'sovereignty' of that parliament militates against the insertion of a justiciable Bill of Rights into the constitutional structure of South Africa. The discussion in the article draws upon recent Canadian experience, first to point out that there are views other than Dicey's Victorian ones as to the requirements of parliamentary sovereignty - that the sovereignty of parliament does not necessarily imply the supremacy of parliament; and second, to suggest that there can be an intermediate position on introducing concepts of 'civil liberties' into the constitutional structure which' does not even demand an abandonment of the formal Diceyian position.
Source: Comparative and International Law Journal of Southern Africa 18, pp 410 –458 (1985)More Less
In this contribution the current legal developments in Bophuthatswana, Ciskei, Lesotho, South Africa, South West Africa/Namibia, Swaziland, Transkei, Venda, Zambia, Zimbabwe, with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.
Application of customary law in southern Africa, by T.W. Bennett: Book review; Law in radically different cultures, by John H. Barton, James Lowell Gibbs, Victor Hao Li, John Henry Merryman: Book reviewAuthor A.J.G.M. SandersSource: Comparative and International Law Journal of Southern Africa 18, pp 459 –460 (1985)More Less