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- Volume 18, Issue 1, 2012
Fundamina : A Journal of Legal History - Volume 18, Issue 1, 2012
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Volume 18, Issue 1, 2012
Author G.E. DevenishSource: Fundamina : A Journal of Legal History 18, pp 1 –14 (2012)More Less
On 31 May 2011 it was fifty years since the advent of the Republic of South Africa. This article examines the Republican Constitution of 1961 in the light of subsequent constitutional and political developments and in particular against the background and values contained and espoused in the democratic and non-racial Constitution of the Republic of South Africa, 1996.
Whereas the 1961 Constitution brought about a significant political change, it did not, as the 1983 Constitution purported to do, initiate a process of constitutional reform. Nor did the Republican Constitution introduce any fundamental changes or reforms. Although the Republican Constitution of 1961, like the South Africa Act of 1909, appeared to be apolitically neutral instrument of government and was not specifically designed to reflect the philosophy and politics of separate development or institutionalised inequality, it was however an oligarchic and racist constitution, that facilitated white hegemony in an unambiguous way.
Afrikaner nationalism's great political and constitutional struggle against imperialism attained its goal when South Africa became a republic. This was therefore an event of singular political importance for white South Africans, but the price that the country paid was its ignominious departure from the Commonwealth.
Only with the advent of the Interim Constitution, following the first historic democratic election of 27 April 1994, did South Africa and its people obtain a democratic constitution within a republican framework, involving an entrenched Bill of Rights, with a democratically elected government. This article revisits and re-evaluates the Constitution of 1961 that brought into being a republic outside the Commonwealth.
Author H.M. Du PlessisSource: Fundamina : A Journal of Legal History 18, pp 15 –31 (2012)More Less
The unilateral determination of price has been a controversial issue for an extended period of time. In NBS Boland Bank v One Berg River Drive, the South African Supreme Court of Appeal questioned whether the rule against the unilateral determination of price should still form part of South African law. Specifically, the Court criticised the Roman-Dutch writers' interpretation of the Roman-law texts. The article critically analyses the rule as found in Roman law. The article shows that different interpretations have been given to the original Roman-law texts dealing with the unilateral determination of price. This is caused, in part, by the difficulty in translating these texts from Latin and ascertaining the true meaning of the Roman-law principles from the fragments of texts scattered throughout the Digest. The main arguments for and against the unilateral determination of price based on the Roman-law texts are considered. The article shows that the majority of the arguments seeking to illustrate that such a contract was void in Roman law are open to criticism. Although there are many arguments favouring the view that the contract would be valid but imperfect, not all of these stand up to scrutiny. The most widely held view gives the impression that a discretion to determine the price did not invalidate the contract provided that it was exercised arbitrio boni viri.
Author Anastasios LadikosSource: Fundamina : A Journal of Legal History 18, pp 32 –54 (2012)More Less
This article gives a historic overview of the origin and development pertaining to the management of accused persons in criminal trials and who suffered from mental illness or mental deficiency at the time when the offence was committed. What makes the issue complicated is that legal insanity cannot be equated with mental illness or deficiency, for legal insanity is a test of capacity for action and choice and it is a formulation designed to determine responsibility. Therefore it is not whether a person suffered from some form of mental illness but whether as a result of a mental illness, the person lacked discernment and control over her/his actions at the time he/she acted. The author traces back the origin of Anglo-American law to the Greek and Roman philosophies and legal systems. Subsequently developments are discussed which took place during the medieval period and amongst others the views of Henrici Bracton, Edward Coke and Matthew Hale are expounded upon. Furthermore attention is also given to the McNaghten rules, the Irresistible impulse rule, the Durham rule and the American Law Institute formula.
Regarding the insanity defense this article also addresses briefly the legal systems of a few selected countries (USA, UK, Canada, Sweden, Israel and South Africa) with divergent legal systems and it is revealing to reflect on the approaches of these systems and their own national identities.
The re-establishment of equity and fairness as the founding principles of liability for unjustified Enrichment in South African lawSource: Fundamina : A Journal of Legal History 18, pp 55 –70 (2012)More Less
In recent developments in the South African law of unjustified enrichment a view has arisen that the classical Roman-law basis of enrichment should be radically overhauled and perhaps discarded in favour of a new set of categories of enrichment liability. If this view were accepted, enrichment would be elevated to the status of a third branch of the law of obligations, alongside contract and delict. In the process, the requirement of impoverishment would be abandoned, the primacy of the principles of equity and fairness would be lost, and the old Roman law condictiones discarded altogether. The main proponent of this view is Daniel Visser in his book Unjustified Enrichment. This article sets out to show that classical Roman law provides a perfectly adequate base on which to develop the law of unjustified enrichment. It also emphasises that equity and fairness, which were the first principles of liability for unjustified enrichment in classical Roman law, should be retained. This is done using the legal historical method to analyse the four central texts on unjustified enrichment in the Digest, and more especially, to read them in their true context in the original works of the classical Roman jurists, using the Palingenesia of Otto Lenel. This analysis shows that classical Roman law created a more sophisticated basis for the law of unjustified enrichment than is reflected in the Corpus iuris civilis or than Roman law has been generally been credited with. Having established this, the paper considers the strong criticism levelled at Visser's book by Judge Carole Lewis of the Supreme Court of Appeal, and her rejection of his argument that the landmark case of McCarthy Retail v Shortdistance Carriers CC represents a move towards the creation of a general action for enrichment liability in South Africa. Jean Sonnekus' scholarly work, Unjustified Enrichment in South African Law, which argues for the retention of the traditional approach to unjustified enrichment, is also considered. In addition, two major problem areas in the law of enrichment are discussed. The first of these is the relaxing of the principle of reciprocity in the law pertaining to contracts and enrichment, and the second is the relaxation of the par delictum rule. In both instances the paper argues that there is a far greater need to counter these trends than to start tinkering with classical Roman civil law and replacing it with a totally new set of legal principles transplanted whole and undigested from the continental, codified legal systems of Europe.
Author Rena Van den BerghSource: Fundamina : A Journal of Legal History 18, pp 71 –91 (2012)More Less
In this article various matters concerning the South African legal system during the nineteenth century are discussed. Historically it is an interesting and important period, and a brief overview of the legal systems and practices in the Cape and Natal Colonies, as well as the Boer republics is provided. Although Roman-Dutch law was acknowledged as the common law of the whole country, English law was applied widely in the Colonies whilst, in the Boer Republics, legislation was promulgated which laid down that Roman-Dutch law would be the principal law of the new Republics. The tension between English law and Roman-Dutch law is discussed, as well as reasons for the strong influence English law exerted in the whole of South Africa and the unexpected strong stance of Roman-Dutch law. It is concluded that the survival of Roman-Dutch law is indeed remarkable, and that its growth and continued existence may be attributed to its equitable spirit and practical adaptability.
The origin and characteristics of the mixed legal systems of South Africa and Scotland and their importance in globalisationSource: Fundamina : A Journal of Legal History 18, pp 91 –114 (2012)More Less
This paper in honour of my friend and colleague, Andrew Domanski, traces the origin and basic features of the South African and Scottish legal systems, which are perhaps the two most important mixed legal systems in the world. These two systems are identified as truly mixed systems on the basis of criteria developed by Vernon Palmer in his book Mixed Jurisdictions Worldwide in order to distinguish them from other pluralistic or hybrid jurisdictions.
The genesis and development of the South African legal system is explored from the time of the Dutch settlement at the Cape in 1652, through British colonial rule from 1806-1900, the subsequent development of South African law after the Anglo-Boer War from 1902 till 1990 and the ushering in of the new constitutional era in South Africa after 1990. An important feature of this development was the gradual adjustment and piecemeal reform of the Cape system of administration of justice. This soon acquired a typically British flavour through, amongst other things, the adoption of the British court system and law of procedure and evidence, the recruitment of legally qualified judges from England and Scotland, the delivery and reporting of well-argued judgments by individual judges and the doctrine of precedent. In addition British rule drew South Africa into a rapidly expanding network of international trade, which significantly boosted commercial and political activity and led to a large-sale importation of English commercial law into the Cape and the eclipse of the unsophisticated Dutch constitutional and administrative law by its English counterpart. At present, the principles enshrined in the post-apartheid South African Constitution are whittling away the superstructure of apartheid laws and are gradually freeing the mixed Roman-Dutch law infrastructure of any form of racial discrimination, leaving a mixed legal system of predominantly English commercial and public law and Roman-Dutch private law, pervaded by the constitutional principles of personal freedom and the rule of law.
The genesis of Scottish law and its development into a truly mixed legal system started with the infiltration of Roman law into Scots law through the close connection between Roman law and canon law in the early Scottish ecclesiastical courts, which gradually also influenced the secular Scottish courts; the acceptance of Roman institutions in notarial practice and Scottish legislation, and the emergence of a body of professional lawyers who had studied in Italy, France and - after the reformation - in the Netherlands, rather than at the English universities of Oxford and Cambridge. A wholesale reception of Roman law, especially Roman private law, took place only after the creation in 1532 of a supreme court in Edinburgh, namely the Court of Session; and the creation of a Scottish legal literature by the "institutional writers" who had studied in Europe and who introduced the ius commune into their native Scots law. However, after Scotland voluntarily joined England through the Treaty of Union in 1707, the influence of civilian law steadily declined and Scots law became increasingly anglicised. Besides the administration of justice system being modelled on the English prototype and the English House of Lords being accepted as the highest court of appeal, the Scottish acknowledgment of the superiority of English commercial law after the unprecedented growth in trade and industry following on the Industrial Revolution of 1850, led to a full-scale adoption of English law into Scots law. Thus Scots law, like South African law, ended up with a strong civilian private law and an English-law based constitutional, procedural and commercial law.
In conclusion, the mixed legal systems of South African and Scots law have demonstrated that the two main legal systems of the world, namely common law and civil law, can exist peacefully in one united legal system. Some of the concepts and institutions developed in mixed legal systems, like the South African and Scottish law of trust and the Scottish standard land security replacing the obscure and antiquated English law of mortgage, are of a truly hybrid character. This renders them fit for adoption in harmonisation projects like that of European private law. On a global scale the ease with which English commercial practices have been incorporated into the civilian law of contract of mixed legal systems leaving the civilian principle of consensus virtually intact, can relieve the fears of Continental, Asian and South American civilian lawyers that harmonisation will inundate the law of obligations with unprincipled common-law provisions and institutions. Finally, mixed legal systems, in having adopted the fundamental liberal Anglo-American principles of the rule of law and due process, enshrined in the European Convention on Human Rights and the South African Bill of Rights in Chapter 2 of its Constitution, have ensured that they will be counted amongst the most developed legal systems in the world.
Constitutional protection of common law : the endurance of the civilian Tradition in southern AfricaAuthor G.J. Van NiekerkSource: Fundamina : A Journal of Legal History 18, pp 115 –134 (2012)More Less
This article investigates the endurance of the civilian tradition in those Southern African countries that received the European component of their law from the Colony of the Cape of Good Hope or the Zuid-Afrikaansche Republiek. The modern-day constitutions of Swaziland and Zimbabwe guarantee the application of respectively Roman-Dutch law and the law of the Colony of the Cape of Good Hope. In order to interpret the constitutional provisions that refer directly to the civilian tradition or to the common law, it is necessary to look at the legislative provisions that first introduced the European law in these countries. Lesotho prima facie affords the least protection to the civilian tradition in its Constitution. A number of legal decisions of the courts of Lesotho are analysed to determine how and to what extent the civilian tradition has been preserved in that Kingdom.
Author J.P. Van NiekerkSource: Fundamina : A Journal of Legal History 18, pp 135 –173 (2012)More Less
Oar maces are a well-known symbol of Admiralty courts and their jurisdiction. The silver oar mace of the Vice-Admiralty Court of the Cape of Good Hope served as such a symbol during its existence from 1807-1891. This article investigates the significance of such oar maces and recounts the trials and tribulations of the Cape oar mace after the operations of the Cape Vice-Admiralty Court were terminated at the end of the nineteenth century.
Source: Fundamina : A Journal of Legal History 18, pp 174 –186 (2012)More Less
In this article it is argued that Roman law and legal history should remain part of the LLB curriculum of South African universities - at least those which aspire to develop wellrounded, confident and educated graduates who can hold their own in an increasingly globalised society. In fact, both the SAQA minimum outcomes for the LLB degree and the practice requirements for LLB graduates (as indicated in the CHE report on the LLB curriculum 2010) place a high premium on a sound understanding of the fundamental principles of South African law and the ability to do research. SAQA mentions in particular that LLB graduates should be able to do comparative and legal historical research. A knowledge of Roman law and legal history is essential for the development of these competencies.
Source: Fundamina : A Journal of Legal History 18, pp 187 –188 (2012)More Less
Author Andrew J.M. StevenSource: Fundamina : A Journal of Legal History 18, pp 189 –192 (2012)More Less