It is suggested in this article that a reasonable degree of detailed computation and guidelines will be necessary before the notion of unjust enrichment can be extended and used to 'bridge the gap between the concepts of the economically developed and the underdeveloped nations'. It is respectfully submitted that such detailed elaboration is of doubtful value even if it were possible, given that each case will depend on its particular facts and politico-economic context. Furthermore, any rigid guidelines are bound to inhibit the flexibility inherent in the application of the principle. Modem international law in general, and the doctrine of unjust enrichment in particular, today finds its contemporary relevance in finding suitable solutions to the inequities created by the prevailing international economic situation, where the rich capital exporting states have continued to exploit the poor underdeveloped state through what has sometimes been referred to as 'unequal' treaties.
This article traces the historical development of the remedies available when infringement of rights under copyright occurs. The development in the four commonwealth jurisdictions of England, Australia, Canada and South Africa is briefly stated and compared. The reason for embarking on such an exercise is twofold. Firstly, relief for copyright infringement is traditionally problematic, and has frequently been based on antiquated remedies originating in the division between English common law and equity. A survey of how these remedies originated and developed might therefore be of use to determine which, if any, remain relevant. Secondly, in the South African context, such a survey will assist in determining whether any of these remedies could apply in South Africa, which has a totally different common law to that of the other jurisdictions. The emphasis throughout will therefore be placed on these remedies, rather than on the development of the rights to which they attach.
Although the importance of legislative control has been discussed at length by lawyers, academies, philosophers and politicians ever since the inception of the Internet, there is little jurisprudence dealing with the Internet, as there have been few cases specifically involving its use. However, what is abundantly clear, is that some form of national and international regulation is necessary to prevent this global network's potential legal problems from getting out of hand. This article considers the legal ramifications of defamation on computer networks with specific focus on the Internet. After a comparative analysis of the English and American systems, the problem will be discussed and suggestions made on how to deal with it from a South African perspective.
This article addresses the status of traditional courts under the 1996 Constitution which received scant attention from those objectors to the new constitutional text (the NT) who concerned themselves with traditional leadership and customary law. One of those objectors, the Congress of Traditional Leaders of South Africa (CONTRALESA), argued that the text did not adequately protect traditional courts. This article attempts to provide some background to the status of traditional courts before the commencement of the interim Constitution. First, the author reviews the status of traditional courts during the pre-colonial and apartheid eras, focusing on the position in Bophuthatswana and KwaZulu-Natal. Secondly, the author addresses informal courts which came to be known as makgotIa or 'peoples' courts. Thirdly, the author notes that the idea of integrating traditional courts as part of a community court system is currently under investigation by the South African Law Commission. Finally, it is suggested that as traditional courts enjoy a certain measure of legitimacy, there bodies can be empowered while being integrated into the system of formal courts. Further, it is incumbent upon judicial officers who hear appeals from traditional courts to take cognisance of law reform mechanisms contemplated by the Constitution.
The article discusses the history and development of the rule-making power in the courts of Botswana. During the Protectorate period the rule-making power was largely vested in the High Commissioner, a colonial administrator. Later, when the power was transferred to a judicial officer, the rules were still subject to the High Commissioner's approval. It was not until after independence that the rule-making power vested solely in the Chief justice and the President of the Court of Appeal. It is mentioned in the article that these judicial officers exercise legislative power in that the Rules of Court they make under the authority conferred on them by parliament have the force of law. These powers are extensive. It is suggested that rule-making power be diffused to include representatives of all branches of the judiciary, the legal profession, and the universities. This approach has been followed in other jurisdictions, as shown in the article.
There has been little litigation on matters of international finance, and in particular the use of documentary credits as a means of financing international trade, in Roman-Dutch law. This is evidenced by the paucity of judicial pronouncements both in South Africa and Botswana, countries which apply the Roman-Dutch common law. While documentary credits have assumed a central role in international trade worldwide, their legal import has not been without controversy and this has led to considerable litigation more especially in developed countries. This has not been the case with the less developed countries where the scale of international trade is very low, resulting in little litigation. Judge Gaefele's decision in African Handling Equipment Company v Monitor Kamaz Trucks (Pty) Ltd is of more than passing interest not only because it is the first decided case in Botswana in which the legal effect and consequences of documentary credits have been considered, a position recognised by Gaefele AJ, but also because of the issues raised and conclusions reached.