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- Volume 19, Issue 2, 1986
Comparative and International Law Journal of Southern Africa - Volume 19, Issue 2, 1986
Volumes & issues
Volume 19, Issue 2, 1986
Author Yvonne M. BurnsSource: Comparative and International Law Journal of Southern Africa 19, pp 167 –198 (1986)More Less
The aim of this article is to examine the feasibility of introducing an ombudsman to deal with complaints received from the public relating to police conduct. Although the regulations promulgated in terms of the present state of emergency (see below) empower the South African Police Force, the South African Railways Police Force, the South African Defence Force and the Prisons Service to execute emergency powers, this study will be confined to a discussion of the Police Force only, since the promotion of the internal security of the state and the maintenance of law and order is primarily the function of the Police. The method adopted in this article is a comparative examination, a discussion on the need for the introduction of a police obudsman, an abstract of the essential characteristics of the office, and lastly the establishment of such an office in South Africa.
The International Covenant on Civil and Political Rights and the recognition of customary law practices of indigenous tribes: the case of Australian AboriginesAuthor Samuel K.N. BlaySource: Comparative and International Law Journal of Southern Africa 19, pp 199 –219 (1986)More Less
In Australia today, the weight of opinion is in favour of the recognition of Aboriginal customary law. However, the recognition entails several difficulties. Firstly there is the politically sensitive issue of whether it is appropriate to apply a different regime of laws to a section of the Australian population. Secondly, significant aspects of Aboriginal customary law are secret; this makes recognition of the law rather difficult. More importantly, there are rules and practices of Aboriginal customary law which seem repugnant to white and indeed, Western standards of human rights. Thus while general opinion in Australia favours the recognition of Aboriginal customary law, it does not support the recognition of tribal Aboriginal practices, particularly relating to punishment. The justification for rejecting such practices is based in part on the view that article 7 of the International Covenant on Civil and Political Rights (ICCPR) precludes their recognition through the prohibition of inhuman treatment or punishment. The focus of this paper is on the recognition of Aboriginal laws with respect to customary practices.
Author P.C.A. SnymanSource: Comparative and International Law Journal of Southern Africa 19, pp 220 –235 (1986)More Less
Over the past ten or twenty years there have been an increasing number of references to "public policy" (or similar phrases) by judges in the common law countries of Britain and her former dominions. This is an observable feature which the writer proposes to sketch by means of examples drawn largely from the field of torts. Not unnaturally, when one looks at other countries in which modern law has enjoyed a more vigorous growth, particularly in the United States, one notices the more frequent use of "public policy" as justification for certain judicial decisions. One asks oneself whether Commonwealth jurisidictions may be on the point of a comparable breakthrough into a new and exciting era of expansion of the common law. To the writer, public policy represents not so much a newly emergent independent legal doctrine as an attitude of mind, a method of approach, a frame of reference within which other legal doctrines may be measured, evaluated, tested and, if found wanting, in logic or justice, discarded.
A comparison between some aspects of South African deeds registration and the German registration systemAuthor Gerrit PienaarSource: Comparative and International Law Journal of Southern Africa 19, pp 236 –251 (1986)More Less
Although registration of deeds was generally adopted in our law through historical development derived mainly from the Germanic common law, this does not mean that no adjustments can be made to the present cumbersome system of deeds registration. A short printed facsimile with enough space for the personal particulars of the transferor and transferee and the descriptionption of the property ought to be as functional as the present version with its continuous repetition of archaic terms like "whereas", "the said Appearer declared that" and "be it hereby made known" to mention a few of the quaint expressions with which the South African deeds documents are interspersed. Furthermore, in such a document it is possible to refer briefly to servitudes and conditions already registered and which remain unchanged, with reference only to the deed in which such servitude or condition was originally created and set out. This will prevent cumbersome descriptionptions being repeated in deed after deed and ought to reduce the size of deeds of transfer considerably.
Author A.J. MiddletonSource: Comparative and International Law Journal of Southern Africa 19, pp 252 –270 (1986)More Less
The appointment of commissions of inquiry to investigate matters of public interest has, in recent years, become so familiar a phenomenon in South Africa that the practice is sometimes regarded with a certain degree of scepticism. As much of this scepticism stems from a failure to appreciate the value and potential of such commissions generally, and the niceties of this method of investigation as practised in South Africa in particular, an exposition of some of the more important aspects of commissions of inquiry in this country is appropriate. The article reviews (1) the nature, use and purposes of commissions of inquiry in South Africa, (2) the general approach adopted by such commissions, (3) the treatment and protection of witnesses appearing before such commissions, (4) the application of the rules of natural justice to commissions of inquiry, including the question of legal representation before such commissions, and (5) the degree of privacy accorded the commission's record. The article also reviews the authorities cited in the annexure and their standing.
Author Nicholas D.C. DillonSource: Comparative and International Law Journal of Southern Africa 19, pp 271 –289 (1986)More Less
The introduction of s 7(3) of the Divorce Act is to be warmly welcomed. By providing for a necessary corrective to the doctrine of freedom of contract, it has provided the opportunity to bring equity and justice to the financial consequences of a considerable number of, although not all, South African marriages. No longer will spouses, married before 1984 in strict separation of property, fear that they may be left, on dissolution of their marriage, with only a recourse to the courts to apply for bear maintenance. A spouse who sacrifices her (of his) career to undertake the task of homemaker need no longer fear that that sacrifice shall go unrewarded. Thus with legal recognition of human capital concepts a spouse can confidently choose to invest themselves in their home and family. They can be confident that as they both contribute to their marriage partnership, in their own way, both shall be able to obtain, upon its dissolution, a fair proportion of their respective investments.
Author Sharya De SoysaSource: Comparative and International Law Journal of Southern Africa 19, pp 290 –303 (1986)More Less
This article examines the rights of spouses within the marriage relationship in the general law of Sri Lanka, with the intention of drawing some conclusions on how the law views the roles of husband and wife. Only two aspects of marriage will be considered - the decision-making process and the financial rights and duties of the spouses. In the article the author examines those decisions that affect the spouses themselves and then go on to consider the more significant ones that affect the children of the marriage. The financial aspects of the relationship are treated in a similar manner. Although there are other aspects of the marriage that would allow us an insight into the nature of this relationship they are not pursued in this study. Both South African and Sri Lankan authorities and case law are presented since both jurisdictions share a common legal heritage in the Roman-Dutch law. In addition, the recent developments in South Africa, in so far as they represent an extension or development of the Roman-Dutch law, would be highly persuasive in the Sri Lankan courts.
Author Suryia K. ParmanandSource: Comparative and International Law Journal of Southern Africa 19, pp 304 –310 (1986)More Less
The American judicial approach to resolving sport injury litigation is as contentious as it is unstandardised. In general a case by case approach is adopted with extensive use, though not so clear application, being made of assumption principles. No doubt this approach is commendable where the peculiarity of the sport demands it. It is however undesirable where it becomes the rule rather than the exception since inter alia it retards the crystallisation of a uniform set of principles. It is an open question whether injury-causing conduct in sport should be evaluated in terms of the objective reasonable man test and not in terms of sports industry standards and customs. Still it is possible that the former test would reduce gratuitous violence in sport. It is also possible that the application of traditional delictual principles would allow the plaintiff participant compensation that the law of delict promises him as a member of society. In any event, the article argues that the present American legal position is far from satisfactory.
Source: Comparative and International Law Journal of Southern Africa 19, pp 311 –352 (1986)More Less
In this contribution the current legal developments in Bophuthatswana, Botswana, Ciskei, Lesotho, South Africa, South West Africa/Namibia, Swaziland, Transkei, Venda and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.
EuropÃ¤isches Privatrecht - Band 1 Ã¤lteres gemeines Recht (1500 bis 1800), by Helmut Coing: Book review*; Jowitt's dictionary of English Law, second edition, second cumulative supplement to the second edition: Book review**; Verfassungsreform in SÃ¼dafrika und Verfassunsgebung fÃ¼r Namibia/SÃ¼dwestafrika, edited by George Ress: Book review*Source: Comparative and International Law Journal of Southern Africa 19, pp 353 –355 (1986)More Less