In this article, the regulation of African Traditional Medicine (ATM) is considered in terms of the law and the national health system of South Africa, and with specific reference to HIV/AIDS. The level of recognition that ATM enjoys in the legal and healthcare systems at present is discussed and juxtaposed against the regulation of traditional medical practices in other African countries. The light in which these practises are viewed by indigenous peoples is also considered. The legal perspective(s) highlighted are analysed against the background of African governments' strategies to promote and preserve indigenous knowledge. Reference will consequently be made to the South African government's efforts to preserve (and promote) indigenous knowledge in the context of traditional medicine. A secondary theme is the existing competing discourses on HIV/AIDS and ATM in sub-Saharan Africa - ie how HIV/AIDS and ATM are generally perceived. It will be shown that specific discourses and perceptions hinder a true realisation of health rights for those infected with HIV/AIDS and also bar the full recognition and regulation of ATM practices. I argue for greater recognition for and regulation of ATM in South Africa's legal and national health systems especially when considering the potential positive impact of ATM therapeutic properties in the context of HIV/AIDS.
This article seeks to compare the Tanzanian consumer bankruptcy and debt relief procedures with those of South Africa. The purpose is to ascertain whether there are any lessons to be learnt by Tanzania from its fellow SADC country, and to indicate a way forward for future law reform in this regard. The research shows that the Tanzanian system, compared to the South African system, is in many respects more liberal towards debtors. So, for instance, the Tanzanian Bankruptcy Act does not require proof of advantage for creditors in order for a debtor to be adjudged bankrupt. However, the Tanzanian system does not provide for any significant alternative debt relief procedure. In 2001 the consumer debt committee of INSOL International recommended that legislators in countries undertaking law reform with regard to debt problems of individual debtors, should provide for alternative debt relief procedures which take into consideration the debtor's specific needs. We suggest that the Tanzanian legislator, when designing such a procedure, should learn from the mistakes of its South African counterpart. The alternative procedure should be inexpensive and simple and should involve extra-judicial rather than judicial proceedings. Finally, it should offer the consumer a discharge from indebtedness and enable him or her to make a fresh start.
The article is an intervention in the discourse around African jurisprudence and its relevance to contemporary post-colonial African society. It repudiates suggestions that African jurisprudence (botho/ubuntu) is unenlightened and inconsistent with the progressive values undergirding the South African Constitution. Drawing lessons largely from the pre-colonial 18th century history of the Basotho kingdom, the article explores how popular participation in that system was a leitmotif of democratic accountability. It lays bare a number of doctrines that abetted the efficacy, effectiveness and accountability of the political system. African jurisprudence also practised human dignity in a way that pulled into harmony formal and substantive justice. It contends that in African jurisprudence human dignity was indivisible. Political and civil freedoms were not separable from socio-economic rights. Finally, the article reviews how the doctrine 'O se re ho Morwa: 'morwa towe!' not only ensured respect and dignity of every citizen, but was also the anchor of social cohesion and harmony in a multi-cultural society.
The American bankruptcy law system is considerably different from most other bankruptcy regimes. In place of the policy of advantage to creditors, which is the system prevailing in most western countries, and also in South Africa, the American system places considerable emphasis on the fresh start policy. While this policy assists debtors to build up a new estate by allowing them to keep a considerable number of their assets, the creditors are also looked after because of the further policy of the preservation of the bankruptcy estate, thereby possibly swelling the bankruptcy estate of the debtor. The exclusion of the debtor's assets from his or her bankrupt estate is known as exemption law. But whatever the policy, bankruptcy (insolvency in some jurisdictions) is, however, really a hopeless situation for all the parties involved, such as the creditors, the debtor, the state, and society in general. For this reason, some commentators submit that the debtor should be forgiven. This may be a sensible idea because if the fresh start policy is ignored in a bankruptcy system, a debtor may become a debt slave who is never able to escape from debt. He or she may then have to depend on social hand-outs, thereby ultimately placing a burden on the country's social system.
A fundamental defect of classical common-law procedure was its inability to test the factual basis of a defendant's defence without the issue being determined at a trial. As a result, the practice of sham pleading developed whereby a defendant raised a fictitious defence for the purposes of delay. Although Lord Brougham raised this matter in a speech addressed to the House of Commons in 1828, it was not until 1853 that he proposed a Bill to halt this abuse. Lord Brougham's Bill was premised on an adapted version of the summary diligence, a procedural mechanism borrowed from Scottish Law. The Bill was unfavourably received by the English legal profession who were suspicious of a Scottish innovation of Civilian origin. In response, Lord Keating introduced a competing Bill during the ensuing session, which was finally enacted in 1855 as the Summary Procedure on Bills of Exchange Act (18 & 19 Vict c 67), commonly dubbed as Keating's Act.
It is contended, that the summary judgment procedure as it has been received into our contemporary practice is the product of political expediency on account of the intense political lobbying and heated policy debates concerning the competing Bills. The resultant compromise produced an indigenous English summary mechanism that, when compared to summary proceedings of Civilian origin, indicates that the term "summary" was misused in its English procedural context because the summary procedure that it devised neither simplified the ordinary proceedings, nor ensured procedural guarantees nor did it promote the execution of judgment.
A further contention is that South African practice for many decades resisted the reception of the English model of summary judgment because it was not procedurally relevant at the time since provisional sentence proceedings, an executory procedure of Roman-Dutch origin, was entrenched in Cape practice and the other colonies. The eventual reception of the summary judgment procedure into South African civil procedural law has been both tardy and fragmented and not without controversy because of its potential for placing in jeopardy the procedural rights of defendants.
It would not be an exaggeration to say that this comprehensive work on gift law is unusual in its structure. I am saying this because of the unconventional approach that the author has chosen to deal with this topic. The author explains the reason for this approach in the preface to the book, stating that he had four different groups of readers in mind. First the lawyer or scholar (in the United States or abroad), who practices or writes in the various fields dealing with gift law, including the law of trusts and estates, and the laws of contract and restitution. Second, those who write and teach in the field of comparative law. Hylan's goal has been to provide information and knowledge of comparative law to those who want to understand the differences between the civil and the common laws, and the different theories underlying them. Third, the book was written 'for those who are engaged in comparative work in fields of study other than the law.' (Preface page xx). Finally, the author wrote the book 'for those who think about gift giving from the perspective of the humanities and the social sciences.' (Page xxi).