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- Volume 22, Issue 3, 2011
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 22, Issue 3, 2011
Volume 22, Issue 3, 2011
Tensions between vernacular values that prioritise basic needs and state versions of customary law that contradict themSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 823 –844 (2011)More Less
This paper departs from a statement made by an elderly female traditional councillor in a Swati-speaking area when consideration was being given to reallocating some farming fields as residential stands for others. She communicated that she loved her field but that she would not choose to retain it if that meant that someone else would have no place to live. She expressed this as a fundamental value in her society.
Other studies have found similar values embraced by different vernacular groupings in South Africa. In these "communal" areas, rights in property are often overlapping and shared. Competing claims over shared property are prioritised on the basis of need, use, contribution made, and care given to others. This is so especially in land distribution and succession wherein security and survival are key motivating factors.
This paper reflects on these vernacular rural value systems in light of scholarship that challenges conceptions of rights as boundaries functioning exclusively - to protect autonomy by keeping others out. This literature rather conceives of rights in more inclusive terms, focusing on how they work in practice to structure the relationships on which people depend for basic survival. Moreover, this literature perceives the content of rights as contextually defined, through inclusive participatory processes. This body of theory is particularly useful when applied to the realm of socio-economic rights wherein a primary ethic in living customary law is that the basic needs of each member should be prioritised in balancing relative rights.
The paper goes on to show how official versions of customary law apply top-down conceptions of authority that privilege the powers of senior traditional leaders in ways that compromise the rights of ordinary people. Accordingly, the paper argues that the often more democratic and egalitarian rights existing in terms of living customary law provide a better departure point in attempts to give effect to socio-economic rights and alleviate poverty in rural areas.
Developing the common law of contract in the light of poverty and illiteracy : the challenge of the ConstitutionSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 845 –864 (2011)More Less
The constitutional settlement that ushered in democracy in South Africa did not summarily erase apartheid from the social and economic landscape. The drafters of the Constitution understood that erasure would not be achieved by way of one silver bullet. It could only occur by way of a journey towards the egalitarian vision prefigured in the constitutional text. At the same time the drafters understood that legal rules which reinforced patterns of power required reconfiguration if the journey was to be undertaken. The idea was that the Constitution, whether through a specific right or the influence of its normative framework, itself based upon the foundational principles of dignity, freedom and equality, would be central to a reconfiguration of the background rules in terms of which all economic activity took place. Viewed within the matrix of this compelling observation, it was to be hoped that the distributive importance of the ground rules of contract would have been the subject of careful interrogation by the courts. This paper seeks to engage with key cases in which South African courts, in effect, ignored these challenges when deciding disputes based upon the law of contract. The record reveals that the courts either eschewed the significance of the Constitution or simply nodded in the direction of the Constitution, before proceeding in the opposite direction. This paper employs the realist work of Robert Hale to illustrate that rules which assign property rights and which impact upon the nature and enforcement of contractual claims profoundly shape economic relationships. In short, if the ground rules are changed, an alteration of social and economic relationship may well take place.
Author Karl KlareSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 865 –874 (2011)More Less
I had the honour - and daunting task - of offering concluding reflections at the Law and Poverty Colloquium with an eye toward drawing together some major threads of the discussion. I repeat here the gratitude I then expressed for the energy and imagination of the many people who made the Colloquium a great success. In the brief compass of these remarks, I cannot possibly survey the rich array of research and analysis we shared, and I have precious little insight to add. I particularly regret short-changing the challenging papers on policy questions.