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- Volume 2003, Issue 9, 2003
Fundamina : A Journal of Legal History - Volume 2003, Issue 9, 2003
Volumes & issues
Volume 2003, Issue 9, 2003
Author Rena Van den BerghSource: Fundamina : A Journal of Legal History 2003 (2003)More Less
This volume of Fundamina contains the Proceedings of the international conference of the Southern African Society of Legal Historians held at Stellenbosch in January 2003. The theme was "Freedom, Justice and Equality: Three Pillars of Legal History", and the papers presented covered a wide range of topics.
The programme included a very special event. A Festschrift entitled Summa Eloquentia was presented to Professor Margaret Hewett. It was published as a editio specialis of Fundamina in 2002.
Author Justice Ian FarlamSource: Fundamina : A Journal of Legal History 2003, pp 1 –10 (2003)More Less
The face that did not fit : race, appearance, and exclusion from the bar in eighteenth-century ScotlandAuthor John W. CairnsSource: Fundamina : A Journal of Legal History 2003, pp 11 –43 (2003)More Less
In a recently published paper, I discussed the controversial admission to the Faculty of Advocates (the Scots bar) of two men, one of whom, John Wright, had been a shoemaker, the other, Robert Forsyth, was the son of a shoemaker. I pointed out that these admissions, in 1783 and 1792 respectively, helped to explain the perplexed attitude of John Wilde, the Professor of civil law in Edinburgh in the 1790s, to the possibility that the jurist Alfenus Varus may have been a shoemaker. I argued that part of the significance of this episode arose from the extent to which members of the Faculty had hitherto identified with the Roman jurists and had founded a large part of their claim for status on their learning in Roman law. The advocates' collective self-perception and notion of themselves as essentially noble had thus been grounded, at least in part, in their academic education. Problems, however, had now arisen with this vision, as the development both of law teaching in the Scottish universities and of the practice of private teaching had placed an education in Civil (ie Roman) law within the possible range of aims of a relatively wider group of individuals.
Author Joan ChurchSource: Fundamina : A Journal of Legal History 2003, pp 44 –61 (2003)More Less
Although the repugnancy of sexism may have been widely acknowledged in official discourse, there are still many instances of discrimination, particularly with regard to sexual orientation. This has resulted in the alienation and exploitation of those who have "dared" to be different. In this paper and in the context of legal history, the topic to be discussed is same-sex unions.
Author Edmund CouzensSource: Fundamina : A Journal of Legal History 2003, pp 62 –72 (2003)More Less
By the year 1697, when William III ordered a census of deer, the animals were confined across England to parks and royal forests and forest laws were no longer a serious point of contention. As the deer disappeared across England, so the emphasis in both poaching and game preservation came to bear on smaller animals. And in 1671 a new era had begun when Parliament passed the Game Act. This Act regulated the hunting of game birds and hares and entrenched earlier class-reservation ideas by creating classes of formally qualified persons who were permitted to kill game. Nobody, if not qualified, was permitted to kill game - even on his own land.
Author Andrew DomanskiSource: Fundamina : A Journal of Legal History 2003, pp 73 –77 (2003)More Less
Plato's dialogues are rich in principles of justice, law and government. This body of principles is a precious inheritance from the ancient world, and one which potentially has practical significance for our age. I shall seek to show this by examining the influence of Platonic justice on the South African Constitution.
Rural trust companies and boards of executors versus country attorneys : the history of symbiotic "bastard relationships" in the battle for trust and estate business in South Africa to ca 1920Author Anton EhlersSource: Fundamina : A Journal of Legal History 2003, pp 78 –93 (2003)More Less
The rise of trust companies and boards of executors in South Africa may be traced back to the introduction of the British legal system at the Cape and the consequent abolition of the Orphan Chamber in 1833. According to Ordinance 104, the functions of the Orphan Chamber, traditionally the administrator of estates at the Cape, were transferred in an altered form to the Master of the Supreme Court. The abolition of the Orphan Chamber and the provision that all estates had to be administered from then on by an executor under the supervision of the Master of the Supreme Court - along with the rapidly growing economy of the Cape Colony and the need for specialised financial services which stemmed from that - soon created a need for corporate institutions with the status of legal trustees. The continuity that the latter institutions afforded would provide the necessary security that was essential for the handling of trust services and which could not be guaranteed by an individual in a one-man business. The shortage of people with the necessary knowledge and time at their disposal to perform the task of the former Orphan Chamber could also be resolved by these institutions. It was against this background that the first trust company in South Africa was established on 22 April 1834 by 22 inhabitants of Cape Town as the South African Association for the Administration and Settlement of Estates and a new type of competitor for trust business, namely the corporate trustee in the form of a board of executors or trust company, and a new profession, the professional trustee, came into being.
Author Lesley A. GreenbaumSource: Fundamina : A Journal of Legal History 2003, pp 94 –102 (2003)More Less
Since the introduction of the four-year undergraduate LLB degree in 1996, various factors, beside the need to implement curriculum reform in courses which existed previously as post-graduate courses, have demanded that legal educators review traditional approaches to their teaching.
Voorda resurgens : an introduction to Jacobus Voorda and his unique lectures on the ius hodiernum at the University of Utrecht, 1755-1760Author Margaret HewettSource: Fundamina : A Journal of Legal History 2003, pp 103 –113 (2003)More Less
Jacobus Voorda (1698-1768) is hardly known to South African practitioners and academics, the chief reason being that his most significant work, 1021 manuscript pages of Dictata ad Ius Hodiernum (lectures on the contemporary law), has remained in manuscript form and buried, until recent decades, in the Provinsjale Biblioteek fan Fryslân (the Provincial Library of Friesland) in Leeuwarden, The Netherlands. Yet, Voorda is important for European legal scholarship because in the lectures which he gave to his law students at the University of Utrecht from 1744 to 1760 he compared the prevailing law of each of the seven provinces of the United Netherlands with the received Roman law. In this he is unique. Other writers such as Groenewegen and Van Leeuwen did make such comparison, but they concentrated chiefly on the law of Holland and moreover were writing for practitioners and not students.
The African Charter on Human and Peoples' Rights and the protection and promotion of the right to equality and nondiscrimination for homosexuals : a discussionAuthor James N. MatshekgaSource: Fundamina : A Journal of Legal History 2003, pp 114 –123 (2003)More Less
The centrality of the principles of equality and non-discrimination in international human rights law is beyond question. International and regional human rights instruments are replete with references to the principles of equality and non-discrimination. The commitment to equality and non-discrimination in the post Second World War epoch was started by the reaffirmation of faith in the equal rights between men and women in the United Nations Charter. Article 1(3) of the Charter states that the organization's purpose is, amongst others, to promote and encourage respect for human rights for all without distinction as to race, sex, language, or religion. In the 1948 Universal Declaration of Human Rights (UDHR), the principles of equality and non-discrimination are further elaborated. Article 2 of the International Covenant on Civil and Political Rights (ICCPR) also states the commitment of the state parties to ensure to all within their territory the rights recognised in the covenant "without distinction of any kind". The principles of equality and non-discrimination also find expression in other international instruments including the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). From the foregoing, it is apparent that the commitment to and achievement of equality and non-discrimination in all societies are goals of the international community.
Equity and the development of the South African health care system : from the Public Health Act of 1919 to the present dayAuthor Charles NgwenaSource: Fundamina : A Journal of Legal History 2003, pp 124 –133 (2003)More Less
The aim of this paper is to explore the extent to which equity as a notion of fairness in access to health care has been integrated into the modern South African health care system. The paper discusses the main legislative and policy instruments that have shaped the South African health care system in modern history. It begins with an analysis of the main pillars of the Public Health Act of 19191 and stops at the National Health Bill of 2001. The point of departure is the ideal of creating a health care system that strives for egalitarianism in respect of access to health care services. It will be submitted that the Public Health Act of 1919 bequeathed to the country a system that was fragmented, dysfunctional, and above all, lacking in egalitarian values. Attempts to radically reform the Public Health Act through instruments such as the National Health Act of 1977 failed to change a system that was biased towards urban, curative and hospital-based care. Moreover, the intensification of racial segregation during the era of apartheid and the privatisation of health care services served to accentuate inequality in access to health care. It was not until the democratisation of South Africa that the health care system began in earnest to transform towards universal access to health care. At a policy level, the White Paper on Transformation of the Health System in South Africa (1997) stands as a beacon of change, with its emphasis on primary health care for all. At a legislative level, the Constitution acknowledges access to health care as a fundamental right. The current National Health Bill seeks to put on statutory footing the institutional framework for universal access to health care.
"Work in progress" : some comments on the status of religious legal systems in relation to the Bill of RightsAuthor Christa RautenbachSource: Fundamina : A Journal of Legal History 2003, pp 134 –150 (2003)More Less
The dialogue regarding the status of religious legal systems in South Africa has always been overshadowed by the controversy surrounding the legal status of customary law. Now that customary law has finally received constitutional recognition it is time to renew and to continue the debate with regard to the status of religious legal systems, especially in relation to the Bill of Rights.
Why is it important to comment on the status of religious legal systems in relation to the Bill of Rights? Religious communities such as Jews, Muslims and Hindus, follow practices that are, at this stage, not formally recognised in terms of South African law. The result is that adherents to these religious legal systems live under state law (common law) in the public sphere and under non-state law (religious customs and usages) in the private sphere.
Source: Fundamina : A Journal of Legal History 2003, pp 151 –166 (2003)More Less
One of the principles which lie at the core of Baha'i belief, is freedom of choice in matters of conscience. Equally central is the status given to justice and equity, which on one level are personal attributes to be cultivated by the individual, and on another level are divine standards which must increasingly come to characterize "an ever-advancing civilization".
Author Eltjo SchrageSource: Fundamina : A Journal of Legal History 2003, pp 167 –176 (2003)More Less
Alteri nemo stipulari potest. As a general rule, both in the Continental ius commune and in the British common law, a contract could not confer rights or impose obligations arising under it on any person except the parties to it. Persons not party to the contract could not sue or be sued on it. The latter principle is clearly expressed in Institutio 3 19 3: Si quis alium daturum facturumve quid spoponderit, non obligabitur. The stipulatio created rights and duties only to the parties to it. It could have no effects whatsoever on third parties, making them neither creditor nor debtor.
Explaining domestic violence in Aboriginal communities : the relevance of the public / private dichotomyAuthor Melodie SlabbertSource: Fundamina : A Journal of Legal History 2003, pp 177 –186 (2003)More Less
The decade of the eighties has been characterised by feminist efforts to explore law and policy relating to male violence against women in intimate relationships. The focus of literature in this respect centred around one aspect of the dichotomy, namely between family and state. This resulted in bringing matters formerly treated as private family matters into the public domain. The function of this dichotomy in relation to diverse groups of women is well documented. However, one group of women - Aboriginal women - has traditionally been omitted from this analysis.
Author Philip J. ThomasSource: Fundamina : A Journal of Legal History 2003, pp 187 –196 (2003)More Less
During the bi-centennial celebrations of the French revolution, which more or less coincided with the implosion of the various communist regimes, the lack of success of fraternité was downplayed. This is reflected in the theme of this conference where fraternité or solidarity has been replaced by justice as one of the pillars of legal history. As the title indicates this paper argues that promotion of commercial interests has been a powerful force in legal development.
Author Dire TladiSource: Fundamina : A Journal of Legal History 2003, pp 197 –204 (2003)More Less
In August 2002 the world converged on South Africa for the purpose of thrashing out a plan to save the environment and its inhabitants. The World Summit was intended to build on the successes of earlier such conferences, namely the Rio Summit on Environment and Development and the Stockholm Conference on the Human Environment. In particular the World Summit was supposed to give effect to the aspirations of the earlier conferences by, for example, setting specific targets for implementation.