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- Volume 20, Issue 3, 1987
Comparative and International Law Journal of Southern Africa - Volume 20, Issue 3, 1987
Volumes & issues
Volume 20, Issue 3, 1987
Author Rika PretoriusSource: Comparative and International Law Journal of Southern Africa 20, pp 275 –293 (1987)More Less
The first South African surrogate babies - triplets at that - were born on 1 October 1987. The surrogate in this case was the 48-year-old mother of a young woman, who was unable to carry a child to term after removal of her uterus. The future of surrogate motherhood is still uncertain in most countries as very few legislatures have addressed the issue directly. Legal precedents are limited and common law principles do not provide adequate answers to the problems surrounding surrogate motherhood. For the purpose of this article, the de jure situation of surrogate motherhood in the United States of America, Britain and Australia will be examined as either their legislatures, or their courts, or both, have been active in this field.
Author Giorgio RadesichSource: Comparative and International Law Journal of Southern Africa 20, pp 294 –315 (1987)More Less
In spite of the fact that the Draft Convention on the Hotelkeeper's Contract is only a draft which has not yet been adopted by an international diplomatic conference, the period 1986-1988 has been earmarked for its adoption. After that, it will only be a matter of time before the Final Convention is adopted. South Africa will then have to decide whether or not to adopt the Convention as part of its law. In order to take the correct decision, the contents of the Draft ought by then to have been studied in order to determine whether they are compatible with South African law on this point and, if there are any deviations, whether these are fatal from a South African legal perspective. This modus operandi is consistent with state practice. States evaluate treaties and other international instruments by comparing them to related aspects in their own national systems. If this study in compatibility proves to be in their interest, they will accept these treaties as law either with some clearly indicated reservations or unreservedly. This article is a study on the compatibility between the Draft Convention and the South African law on this point.
Author J.B.K. KaburiseSource: Comparative and International Law Journal of Southern Africa 20, pp 316 –334 (1987)More Less
The role of legal education in a changed South African society is going to be both important and multifaceted. The ingenuity of legal educators (and that of the legal profession as a whole) will be required to devise the fundamental restructuring of administrative units that change will entail. The burden shall be to actively challenge the notion that legal education is, or should be, aimed at producing persons destined solely for legal practice. The consequent increase in the demand for a legal education will place a great strain on the resources available to legal educators. The traditional mode of providing a legal education, may need re-examination, with perhaps a greater emphasis on distance teaching of law. Even in relation to our role as trainers of students destined for legal practice, we shall need to devise new approaches to legal education that will result in the production of well-rounded educated persons. Whatever the outcome, the experience of Papua New Guinea suggests that the resultant law reforming activity needs to be sustained.
Some international legal problems arising from the definition and application of the concept of "permanent sovereignty over wealth and natural resources" of statesAuthor John BaloroSource: Comparative and International Law Journal of Southern Africa 20, pp 335 –352 (1987)More Less
The purpose of this article is to elucidate the meaning of the concept of "permanent sovereignty over wealth and natural resources" as formulated by the UN General Assembly resolutions. From the point of view of public international law, it is of interest to ascertain the legal status and effect of this concept. An attempt will be made to answer the question whether the concept of "permanent sovereignty over wealth and natural resources" means anything more than a reference to the sovereign state's right of nationalisation or expropriation of foreign property rights located within its territorial jurisdiction.
Prescription, cosmetic and chemical drug products liability in Australia and some Commonwealth jurisdictionsAuthor P.C.A. SnymanSource: Comparative and International Law Journal of Southern Africa 20, pp 353 –376 (1987)More Less
Today, the area of drugs and drug product liability is a complex, ever changing synthesis of medicine and the law. Drugs are now recognised as inherently dangerous with potential for causing harm. The majority of today's prescription drugs hardly existed twenty years ago. In this age of chemotherapy, masses of the population are vaccinated or innoculated against diseases, and few, if any, individuals, do not at some time or another make use of medical prescriptions. It is then only to be expected that courts will at one time or another be flooded with cases of alleged injuries suffered from the use of such drugs. Such an avalanche of litigation did occur in the United States of America, but did not materialise in Commonwealth jurisdictions.There appears to be no legal obligation on medical practitioners to report any adverse drug reactions, and the data on reported incidents must be considered incomplete. A number of reasons may be advanced for this lack of reporting.
Source: Comparative and International Law Journal of Southern Africa 20, pp 377 –404 (1987)More Less
Of the legal systems of the former three High Commission Territories in Southern Africa, that of Lesotho lies in between that of Swaziland with its strict dualism and that of Botswana which, though still dualist, shows overt signs of developing into a unified system. Of the three countries, Lesotho has by far the most involved set of internal conflict rules which, unlike the position in Botswana and Swaziland, have, for the most part, been formulated by the superior courts. On the other hand, of the three countries Lesotho has progressed farthest in the direction of a unified court structure. This is of the greatest importance as history elsewhere has shown that a unified judiciary leads towards unification of law. However, unification is not something which should, or indeed could, be forced upon the public. It is a long-term endeavour which depends for its successful outcome upon a carefully planned law reform programme which seeks community participation and support.
Author A.J.G.M. SandersSource: Comparative and International Law Journal of Southern Africa 20, pp 405 –410 (1987)More Less
While the study of customary law has shed much of its earlier European ethnocentricity, and has become responsive to autonomic development, it remains preoccupied with small-scale rural societies. Urban customary law has hitherto received only scant attention; yet, it is in the urban area that the centre of customary law development lies. The urban area is no longer merely an extension of the rural; in fact, at least in South Africa, the position today is reversed. Autonomic customary law is self-generated and self-regulating. It is fluid by nature and does not lend itself to being confined in a fixed, written form. As the life-world of the people changes, so do the rules and processes of autonomic customary law. African autonomic customary law, in particular, has shown a remarkable capacity for adaptation to external influences. Today's autonomic customary law is not the same as the customary law of the pre-colonial past. The traditional communal spirit, however, remains.
Author M.W. PrinslooSource: Comparative and International Law Journal of Southern Africa 20, pp 411 –420 (1987)More Less
This article investigates how the restatement of indigenous law in Southern Africa can be facilitated and considers a more efficient method of research with regard to time, costs and manpower. Reference is made to the various methods and techniques of research used in restating or recording indigenous law, in order to indicate their usefulness. Restatement entails a systematic, analytical, and comprehensive account of a branch of the law which is unwritten or is scattered between a variety of sources. It implies a re-arrangement, in improved form, of statements of the existing law. The result is not a legislative code, but a guide for juridical purposes.
Author Carmen NathanSource: Comparative and International Law Journal of Southern Africa 20, pp 421 –426 (1987)More Less
Today's malome, although often approached at times of matrimonial discord, plays no role and has no presence during civil divorce settlement negotiations where property and/or custody of children is relevant. This is left to the legal representatives of the couple - usually on the courthouse steps. Traditionally divorce is not known to the Batswana people and in rare cases where the wife has returned to her original group, property interests and matters affecting children such as guardianship and custody, were clear cut and not subject to negotiation. Nevertheless in modern times where mediation is possible and where one of the spouses has a recognised malome, it is felt that he could play a useful role. Similarly, when reform of social benefits is considered the malome who has become the custodian of his sister's child should be taken into account.
The English legal system, by Keith J. Eddey: Book review; Schweizerisches Jahrbuch fÃ¼r internationales Recht/Annuaire Suisse de droit international 1986 XLII, by Luzius Wildhaber: Book review**; Censorship in South Africa, by J.C.W. van Rooyen: Book review***; Verrykingsaanspreeklikheid in die Suid-Afrikaanse reg, third edition, by Wouter de Vos: Book review****Source: Comparative and International Law Journal of Southern Africa 20, pp 458 –462 (1987)More Less
Source: Comparative and International Law Journal of Southern Africa 20, pp 463 –469 (1987)More Less