To see the other types of publications on this topic, follow the link: Civil procedure – South Africa.
Journal articles on the topic 'Civil procedure – South Africa'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 journal articles for your research on the topic 'Civil procedure – South Africa.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
Nombulelo Queen Mabeka and Rushiella Songca. "An Overview of Statutes Relating to Civil Procedure in South Africa in Light of the Changes in Technology." Obiter 41, no. 4 (March 24, 2021): 685–703. http://dx.doi.org/10.17159/obiter.v41i4.10476.
Full textAbstract:
E-technology has fast become an acceptable and convenient method of communication and a prerequisite of business transactions globally. South Africa is no exception to the trend. While technological progress has facilitated rapid change in the way humans communicate and transact, South African law has not kept abreast of the swift transformation and growth in this sector. This lacuna is especially evident in the South African law of civil procedure, which regulates the civil process in South African courts. Although subject to regular amendment, it appears prima facie not to embrace advances in e-technology and their effect – or potential effect – on the legal process.Moreover, the existing corpus of legislation governing civil process appears to have disregarded the provisions of the Electronic Communications and Transactions Act (ECTA) to the extent that it already provides mechanisms for the use of e-technology. In South Africa, the law of civil procedure is regulated by statutes such as the Rules Board for Courts of Law Act, the Superior Courts Act, the Magistrates’ Courts Act, the Sheriffs Act, the National Credit Act, the Small Claims Court Act, and the Divorce Act, which inter alia regulate court process and ensure the fair administration of justice. The submission made here explores this indicated gap within selected legislation pertinent to civil procedure and postulates the effect of e-technology in the context of the abovementioned legislation.As an example, section 35 of the Superior Courts Act indicates that parties and witnesses must make a physical appearance in the court of issue. This provision, however, does not expressly allow for the use of video conferencing, which would enable witnesses to give evidence via e-technology, and thus allow parties to investigate and re-examine witnesses situated in any geographical location outside of court. Further, section 74Q of the Magistrates’ Courts Act makes it mandatory for garnishee orders to be served personally or by registered mail. This provision is not in line with developments in e-technology. Email, Facebook, or other digital means of service could facilitate the service of garnishee orders issued by magistrates’ courts more effectively and remove delays posed by slow postal delivery, and also inhibit the prohibitive cost of personal service. With this contribution, select statutory provisions are compared to ECTA provisions and specific e-technology laws so as to determine the extent of the gap in the implementation of e-technology within the sphere of civil process. The authors then provide insights into how the current civil law statutes could be amended in line with selected e-technology legislation discussed here.
2
De Wet, Erika. "The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 1 (April 21, 2017): 565. http://dx.doi.org/10.17159/1727-3781/2014/v17i1a2258.
Full textAbstract:
The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.
3
Queen Mabeka, Nombulelo. "The Application of Section 8 of Cybercrimes Act 19 of 2020 in Civil Procedure in South Africa is a Hailing Snow: A Comparative Studies between South Africa and United Kingdom." International Journal of Law and Public Administration 5, no. 2 (December 7, 2022): 13. http://dx.doi.org/10.11114/ijlpa.v5i2.5814.
Full textAbstract:
In South Africa the legislature passed a statute that regulates cyber fraud that is called Cybercrimes Act 19 of 2020 in an attempt to combat cybercrimes, which include cyber fraud. The commission of cyber fraud in Civil Procedure constitutes a cause of action that enables the victim to claim for damages. It is not clear in terms of Cybercrimes Act whether the victim may institute proceedings whilst the matter is pending before the court in criminal proceedings or after the perpetrator is convicted. This raises a question on the application of the two common law principles that the defendant may raise as a special plea. Thus, res judicata and lis pendens may be raised as a special plea to prevent the victim of cyber fraud from receiving compensation for damages suffered. This prejudices the victims because some of the consequences that result from cyber fraud are dire to the victim. For example, the victim may loose money, property and may psychologically be affected as a result of cyber fraud. This article follows a qualitative research methodology that is based on an analysis in jurisprudence. Thus, the article looks at section 8 of the Cybercrimes Act, judicial precedent, as well as scholarly views shared by various authors to determine the gap. The author provides a solution, as well as recommendations that will ensure that the victims have a recourse in Civil Procedure. Moreover, there is evidence that proves that cyber fraud does exist in jurisdictions such as the United Kingdom. The article examines the legal position of cyber fraud in the United Kingdom and does a comparative studies between South Africa and the United Kingdom.
4
Mcnerney, Michael T., B. J. Landsberger, Tracy Turen, and Albert Pandelides. "Comparative Field Measurements of Tire Pavement Noise of Selected Texas Pavements." Transportation Research Record: Journal of the Transportation Research Board 1626, no. 1 (January 1998): 78–84. http://dx.doi.org/10.3141/1626-10.
Full textAbstract:
The effects of traffic noise are a serious concern in the United States and in the rest of the world. One significant component of traffic noise is tire-pavement interaction. If tire-pavement noise can be reduced at the source instead of through the use of traffic noise barriers set up to protect individual receivers, then potential savings can accrue. This research effort conducted field testing on 15 different pavement types found in Texas, and on six pavement types found in South Africa. A test procedure was developed with roadside microphones and microphones mounted on a test trailer to record and analyze the differences in tire-pavement noise. The test procedure was designed to develop comparisons of pavements while other variables were kept constant. The results, measured on the standard A-weighted scale, indicated for the 15 test pavements in Texas a difference of roadside noise levels of up to 7 dBA. Additionally, a roadside noise level of one pavement measured in South Africa was more than 2 dBA quieter than any Texas pavement.
5
Osman-Hyder, M. "Termination of Muslim marriages in the South African legal context: Understanding the challenges." Stellenbosch Law Review 33, no. 2 (2022): 91–109. http://dx.doi.org/10.47348/slr/2022/i2a5.
Full textAbstract:
Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.
6
Akinloye, Idowu A. "Legal Disputes Involving Clergy Discipline: Perspectives from Nigeria and South Africa." Ecclesiastical Law Journal 22, no. 2 (May 2020): 194–233. http://dx.doi.org/10.1017/s0956618x20000058.
Full textAbstract:
To preserve the integrity and purity of the church, the policies of churches commonly provide for the enforcement of discipline whenever a cleric errs. The concern is that despite these provisions in the governing documents of churches, disputes challenging churches’ disciplinary exercise over their clergy are increasingly finding their way into the civil courts for adjudication. These disputes have implications for the reputation, governance and flourishing of a church. Against this backdrop, this article analyses a number of case studies to examine some legal issues arising from the churches’ exercise of disciplinary powers over their clergy within the Nigerian and South African contexts. From the analysis of the cases, a wide variety of legal issues associated with implementing church disciplinary procedures are identified to offer some lessons that may enhance the quality of legal risk management for churches.
7
Edlmann, Frederick Robert Peter, and Sara Grobbelaar. "A Framework of Engagement Practices for Stakeholders Collaborating around Complex Social Challenges." Sustainability 13, no. 19 (September 29, 2021): 10828. http://dx.doi.org/10.3390/su131910828.
Full textAbstract:
South Africa’s interventions to address complex social challenges rely on coordination across several sectors and between different levels of government and society. Improved alignment, planning and coordination are needed when addressing the causal factors of these social challenges. These causal factors include the environments in which people live and their behaviours. Furthermore, emphasis is placed on the recurring engagement of civil society, especially of marginalized stakeholders, as participants in the efforts to address the challenges. The study draws from the promise shown by stakeholder networks, termed Innovation Platforms, in other Sub-Saharan Africa countries to address such complex social challenges. The study aimed to improve the understanding of how a stakeholder network’s engagement practices impact the effectiveness of the network. To this end, a conceptual framework and management tool for stakeholder engagement in IPs is proposed. The study followed the conceptual framework analysis procedure to develop, evaluate and refine the conceptual framework. The article describes the core research outcomes of the framework development approach, starting with a systematized literature review to identify core concepts, followed by interviews with experts and a case study to refine the framework content. The case study applied the framework to develop recommendations for improved engagement in a stakeholder network which has been established around the challenge of vagrancy in Stellenbosch, South Africa. The result of the approach is a multidimensional framework for conceptualizing stakeholder engagement practices in a variety of contexts. The focus of the framework content remains on the practices of engagement which enable effective and fruitful stakeholder interactions within and around a network. The study delivered valuable insights into the nature of some development initiatives in South Africa and the impact of stakeholder engagement on them.
8
Schenker, Inon. "Cutting-Edge Success in Preventing Heterosexual HIV Transmission in Africa: Voluntary Medical Male Circumcision Has Reached 15 Million Men." AIDS Education and Prevention 30, no. 3 (June 2018): 232–42. http://dx.doi.org/10.1521/aeap.2018.30.3.232.
Full textAbstract:
Male circumcision is a minor surgery performed for religious and medical reasons. Three randomized clinical trials demonstrated it could reduce heterosexual HIV transmission from infected females to males by over 60%, paving the way in 2006 for multinational efforts to circumcise 27 million men in sub-Saharan Africa by 2021. It is estimated that by 2030 male circumcision will avert at least 500,000 HIV infections in Africa, saving lives and budgets. Voluntary medical male circumcision (VMMC) of adults and adolescents has challenged policy makers, implementers, funders, and civil society in bringing surgery to the frontline of HIV prevention. Five key challenges are discussed: policy, clinical, demand, supply, and scaling up. A unique Israel-Senegal-South Africa collaboration, which enhanced high-volume (100 VMMCs per day) and high-quality (less than 2% minor adverse events) procedures, is described, highlighting VMMC as one of the most impressive public health collaborative interventions in HIV/AIDS prevention globally.
9
Venter, Francois. "Judicial Defence of Constitutionalism in the Assessment of South Africa's International Obligations." Potchefstroom Electronic Law Journal 22 (October 23, 2019): 1–23. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6253.
Full textAbstract:
The (sometimes fragile) balance between South Africa's constitutional obligations to protect and promote human rights in the international arena and the realities of political practice is the focus of this paper. The Constitution provides for solid dualist mechanisms and procedures for parliamentary oversight of the executive's conduct in the governance of international relations, including the conclusion of treaties. There is, however, a congenital constitutional flaw in the oversight instrumentation of the Constitution: the president is endowed with practically unfettered control over cabinet, and through the cabinet and the parliamentary caucus, he has indirect but firm control over parliament. Consequently, parliamentary oversight of international relations is severely challenged, effectively leaving it to the minority parties, civil society and the courts.
This paper assesses the effectiveness of the protection of international human rights in South Africa by constitutional means. It begins by setting out the constitutional foundations that were designed to provide the desired protection and the place of international law in the South African legal order. This is followed by a description of the impact of political reality on the implementation of the constitutional oversight mechanisms.
Due to the justiciability of government conduct under the Constitution, parliamentary oversight of executive conduct in the international sphere has largely taken the form of judicial review. In this, the courts have performed very well. This emerges from a concise overview of some key cases in which the courts developed sound principles and delivered strong judgments about the government's failures to maintain the required constitutional standards in its international relations. The cases show a sensitivity on the part of the courts to avoid judicial overreach, while taking up the responsibility to uphold constitutionalism.
While the courts' stabilising interventions must be applauded, the executive tendency to flout its constitutional responsibilities remains a cause for concern.
10
Bekker, Thino. "Summary judgment — Quo vadis?" South African Law Journal 138, no. 1 (2021): 88–114. http://dx.doi.org/10.47348/salj/v138/i1a5.
Full textAbstract:
The summary judgment procedure in South African law provides for a speedy judgment in favour of a deserving plaintiff where it can be shown that the defendant does not have a triable defence. In 2019 the Rules Board made certain drastic amendments to the procedure of summary judgment in the high court. In this article the historical development of the procedure of summary judgment will be discussed, and the new amendments to rule 32 of the Uniform Rules of Court critically evaluated. It will be argued that the amendments to rule 32 were unnecessary and that it may diminish the right to access to justice in civil disputes. It will, however, also be argued that there are some merits in the critique raised by the Rules Board in relation to rule 32 and that the Rules Board missed a golden opportunity to overhaul the entire summary judgment procedure in a more sensible manner and in line with the core constitutional values of s 34 of the Constitution. It will be argued that rule 32 should be replaced in its entirety by a new, more streamlined procedure, and some recommendations for legal reform will be made in this regard.
11
Fanourakis, G. C. "Utilising Land Type data for geotechnical investigations." Journal of the South African Institution of Civil Engineering 64, no. 1 (March 25, 2022): 12–24. http://dx.doi.org/10.17159/2309-8775/2022/v64n1a2.
Full textAbstract:
In South Africa, a Land Type Survey (LTSS) has been conducted of the entire country. The information available from the LTSS is readily and inexpensively made available to the public (in the form of maps and accompanying memoirs). This survey includes information on the climate, terrain and soils. The soil information given includes qualitative data (such as pedological classifications, soil profiles and soil types), as well as quantitative physical and chemical properties of representative soils tested. Such information is used primarily for agricultural purposes. This paper proposes an approach for inferring information, of relevance in reconnaissance geotechnical engineering surveys, from Land Type data, to supplement geotechnical investigation data. The proposed procedure was verified using actual information from a geotechnical report. This investigation indicated that general engineering properties can be inferred from qualitative pedological data. In addition, statistically significant engineering properties (including the grading, Atterberg Limits and the USCS and AASHTO classifications) were determined from quantitative pedological data, in 86% of cases, for the soils considered. It is evident from this research that data from the Land Type survey data can be successfully used for geotechnical investigation purposes for certain developments (such as roads and townships) where the depth of interest is relatively shallow.
12
Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 6 (November 14, 2014): 0. http://dx.doi.org/10.17159/1727-3781/2014/v17i6a618.
Full textAbstract:
EditorialThis voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light of the text of the South African Constitution. Mmaphuti Tuba analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union. Phoebe Boltondeals with the thorny issue of public tenders and the extent to which bidders must comply with tender specifications and conditions. Leentjie de Jong examines present-day family arbitration and the problems experienced with it. Daleen Millard and Birgit Kuschke evaluate the insurer’s pre-contractual duties in the light of the transparency principle in insurance law. Karin Calitz deals with the question if a church can be held liable for the sexual assault of children by a priest, when the victims claim as adults, many years after the events took place. The entitlement of a non-member spouse to the member’s pension forms the focus point of Clement Marumoagae’scontribution. Mitzi Wiese reflects on the correctness of the classification of liens into enrichment and contractual liens. Frans Viljoen and Nicholas Orago analyses the importance and implications of the individual communications procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and details some of the reasons why it would be beneficial for South Africa to accede thereto. The interplay between international law and labour law in South Africa in the context of diplomatic immunity is investigated byEzette Gericke. Cornelius Kilian and Elizabeth Snyman-Van Deventer consider section 75 in the Companies Act of 1973 (or its equivalent, section 36(2) in the Companies Act of 2008) and the topic of statutory approval for an artificial decrease or increase in the number of issued shares. Annelie Laas and Trynie Boezaart give a critical analysis of the legal measures available to curb bullying in schools. Further afield, Mtendeweka Mhango discusses the development and current status of the political question doctrine in Ghana.The first note by Roger Evans and Lienne Steyn deliberate on the seemingly contradictory outcomes of three high court judgments regarding the question of ownership of property which vests in the master of the high court by virtue of the Insolvency Act 24 of 1936. Philip Stevens also discusses recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sieg Eiselen illustrates how the Department of Trade and Industry’s proposed amendment to the definition of “electronic signature” would undermine the key principles of functional equivalence, media neutrality and party autonomy. Luanda Hawthorne deliberates on the element of exploitation in bargaining relationships between contractual parties, as highlighted in Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). Anneliese Roos and Magda Slabbert discuss the case of Isparta v Richter 2013 6 SA 4529 (GP), which dealt with defamation in the social media on the Facebook platform. Rowena Bernard considers the case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC), where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five of the staff members. Nico Buitendag and Karin van Marle reflect on Afriforum v Malema 2011 6 SA 240 (EqC), which drew considerable attention in the media and in the public discourse. In the last contribution, James Linscott analyses F v Minister of Safety and Security 2012 1 SA 536 (CC), which dealt with the “standard” test for vicarious liability.EditorChrista Rautenbach
13
Rogers, Owen. "‘I beg to differ’: Are our courts too agreeable?" South African Law Journal 139, no. 2 (2022): 300–339. http://dx.doi.org/10.47348/salj/v139/i2a4.
Full textAbstract:
If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.
14
Mabeka, Nombulelo Queen. "An Analysis of the Implementation of the CaseLines System in South African Courts in the Light of the Provisions of Section 27 of the Electronic Communications and Transactions Act 25 of 2002: A Beautiful Dream to Come True in Civil Procedure." Potchefstroom Electronic Law Journal 24 (May 24, 2021): 1–31. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8707.
Full textAbstract:
The Electronic Communications and Transaction Act 25 of 2002 is an effective piece of legislation that strives to put South African law on the map of the evolving global world. However, some provisions have not yet been recognised in civil proceedings, particularly section 27 of the ECT Act. Although some rules attempt to embrace e-technology, such as Rule 4A of the Uniform Rules of Court, this is not sufficiently compliant with e-technology. The CaseLines system implemented by the judiciary seeks to enforce this section to a certain extent but a lacuna has been identified and must be modified. This article analysis the CaseLines system with reference to section 27 of the ECT Act and provides solutions and recommendations.
15
Jones, D. "Toward Fit-for-Purpose Certification of Road Additives." Transportation Research Record: Journal of the Transportation Research Board 1819, no. 1 (January 2003): 208–17. http://dx.doi.org/10.3141/1819b-27.
Full textAbstract:
Chemical stabilizers and dust palliatives are widely used in road construction and maintenance to improve the characteristics and performance of available materials for lower dust levels, improved riding quality, reduced gravel loss, and improved all-weather passability. Numerous products are available to the road industry. However, the level of research and the usefulness of the findings differ from product category to product category. In many instances, no effort has been made to quantify the benefits and cost-effectiveness of additives over longer periods of time (e.g., 5 years), and little attempt has been made to compare the performance of treated roads with the performance of untreated roads for reduced gravel loss and reduced maintenance, the two most important factors in unsealed road management. Only limited information on material requirements and application techniques is available, whereas there is minimal information on rejuvenation. This lack of understanding has culminated in general skepticism in the road industry regarding chemical dust control and stabilization with so-called alternative stabilizers. The situation is aggravated by poor marketing, with many sales representatives having no engineering background, little understanding of the road industry, and insufficient information to provide adequate technical backup. Discussions with road authorities and consulting engineers indicated that a “fitfor-purpose” certificate for each product issued by an independent certification body would contribute to confidence in the use of the products. A certification system would also encourage suppliers to conduct appropriate product research. An internationally recognized certification body in South Africa was therefore approached about developing such a certification system, under the guidance of a steering committee with representation from road authorities, consulting engineers, product suppliers, and academia. Unsealed road additive certification is introduced, the development of control tests for certification is detailed, and a procedure for certification is proposed.
16
Khan, Muhammed Siraaj. "Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the Nkala Judgment has on Litis Contestatio." Potchefstroom Electronic Law Journal 22 (April 15, 2019): 1–13. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5397.
Full textAbstract:
The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment.
17
Scholte, Jan Aart, Soetkin Verhaegen, and Jonas Tallberg. "Elite attitudes and the future of global governance." International Affairs 97, no. 3 (May 2021): 861–86. http://dx.doi.org/10.1093/ia/iiab034.
Full textAbstract:
Abstract This article examines what contemporary elites think about global governance and what these attitudes might bode for the future of global institutions. Evidence comes from a unique survey conducted in 2017–19 across six elite sectors (business, civil society, government bureaucracy, media, political parties, research) in six countries (Brazil, Germany, the Philippines, Russia, South Africa, the United States) and a global group. Bearing in mind some notable variation between countries, elite types, issue-areas and institutions, three main interconnected findings emerge. First, in principle, contemporary leaders in politics and society hold considerable readiness to pursue global-scale governance. Today's elites are not generally in a nationalist-protectionist-sovereigntist mood. Second, in practice, these elites on average hold medium-level confidence towards fourteen current global governance institutions. This evidence suggests that, while there is at present no legitimacy crisis of global governance among elites (as might encourage its decline), neither is there a legitimacy boom (as could spur its expansion). Third, if we probe what elites prioritize when they evaluate global governance, the surveyed leaders generally most underline democracy in the procedures of these bodies and effectiveness in their performance. This finding suggests that, to raise elites' future confidence in global governance, the institutions would do well to become more transparent in their operations and more impactful problem-solvers in their outcomes.
18
De Hollanda, Pedro Paulo Teófilo Magalhães, Cláudia Henriqueta Conde Rosa, Samantha Albano Amorim Cardoso, and Ciro Campos Christo Fernandes. "Schools of Government: a comparative study." Revista do Serviço Público 70 (December 6, 2019): 15–33. http://dx.doi.org/10.21874/rsp.v70i0.1514.
Full textAbstract:
The Schools of Government perform a central role to the public service of many countries. Despite being a disseminated and well-established phenomenon, the functions and even the concept of Schools of Government vary. Aiming to portray the functions and characteristics of Schools of Government around the world and offer a better understanding of them, this paper presents a comparative study of Schools of Government located across five continents. Based on purposive sampling, eight Schools of Government were selected to be part of this in depth study: École Nationale d'Administration, ENA – France; Canada School of Public Service, CSPS – Canada; Instituto Nacional de la Administración Pública, INAP – Argentina; Australia and New Zealand School of Government, ANZSOG – Australia and New Zealand; Civil Service College, CSC – Singapore; National School of Government, NSG – South Africa; Direcção Geral da Qualificação dos Trabalhadores em Funções Públicas, INA – Portugal; and Escuela Superior de Administración Pública, ESAP – Colombia. Data collection procedures included interviews and document analysis. Data was analyzed using content and comparative analysis. This study highlights some important dimensions of Schools of Government including the position within the government, funding, main activities, organizational structure and personnel. Other similarities (e.g. among members of Commonwealth) and possible common trends and innovation challenges are also discussed. Finally, we discuss the results comparing them to previous studies findings.
19
Visser, A. T., and Sally Hall. "Innovative and Cost-Effective Solutions for Roads in Rural Areas and Difficult Terrain." Transportation Research Record: Journal of the Transportation Research Board 1819, no. 1 (January 2003): 169–73. http://dx.doi.org/10.3141/1819a-24.
Full textAbstract:
In many parts of the world, high-level engineering solutions are inappropriate for rural areas where expertise, skills, and equipment are unavailable. Often these areas suffer from difficult terrain that also makes accessibility a problem. At the 1999 International Conference on Low-Volume Roads, a design catalogue was presented for a flexible portland cement concrete pavement using geocells, which was suitable for labor-intensive construction. However, the catalogue required layer works, which meant that construction equipment, although minimal, was required. This was seen as a major constraint, particularly when communities become involved in the construction of these local access roads. In addition, in difficult terrain the handling of drainage becomes a major engineering undertaking for which expertise may not be locally available. The aim of this study was to develop a structural design catalogue that caters for the range of traffic and material conditions typically encountered in these remote rural areas. Additionally, standard solutions were developed for dealing with steep gradients and surface drainage that are coupled to the structural design. The fundamental engineering principles were used to derive the structural design catalogue and in the management of surface drainage. Case studies were conducted in the successful application of the design catalogue to demonstrate the approach and design procedures. This approach has made a significant contribution in improving the quality of life of rural communities, particularly in remote and often poor regions of South Africa.
20
Van Loggerenberg, D. "CIVIL JUSTICE IN SOUTH AFRICA." BRICS Law Journal 3, no. 4 (January 1, 2016): 125–47. http://dx.doi.org/10.21684/2412-2343-2016-3-4-125-147.
Full text
21
Shubane, Khehla. "Civil Society in South Africa." Journal of Democracy 2, no. 3 (1991): 53–55. http://dx.doi.org/10.1353/jod.1991.0036.
Full text
22
Rautenbach, IM. "Regspraak: Die konstitusionele hof verwyder die reg van werknemers om nie onbillik ontslaan te word nie uit die beskermingsveld van die handves van regte – grondwetlike gesigspunte." Tydskrif vir die Suid-Afrikaanse Reg 2021, no. 1 (2021): 145–59. http://dx.doi.org/10.47348/tsar/2021/i1a9.
Full textAbstract:
Section 39(2) of the Constitution of the Republic of South Africa, 1996, recognises the existence of rights not protected in the bill of rights. The South African bill of rights protects human conduct and interests extensively. Before the AMCU judgment was delivered, no clear example of a right not protected by the bill of rights had been identified in case law and legal literature. In the AMCU case the constitutional court deviated from previous judgments by holding that the interests of employees not to be dismissed unfairly is not covered by the right to fair labour practices in section 23(1) of the constitution. The court based its finding on textual and contextual interpretive considerations. Its interpretation of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section 23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended constitutional phrases like “fair” labour practices is determined. And an extra-textual reference to the protection of the right in ordinary law is not relevant when the meaning of a constitutional provision is determined. Aspects of human dignity and physical and psychological integrity cannot be removed from the protective ambit of the bill of rights because they are protected by ordinary rules of the law of delict and criminal law. Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair labour practices, like the right to access to housing, food, health and social services, children’s rights and criminal and civil procedural rights, protects other constitutional rights in a particular field, in this case in the field of labour relations. Apart from the fact that it can hardly be contested that every employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human dignity, physical and psychological integrity, economic activity, association and audi alteram partem, may be limited factually by dismissals and dismissal procedures. The scheme and ethos of the South African bill of rights is that these special rights that overlap with the general rights are guaranteed separately. Within this context one of the ironies of the artificial exclusion of a right from the protective ambit of the special right is that its violation may, like in systems without these special rights, be challenged on the basis of the unjustifiable limitation of the general rights. A rule of thumb that the protective ambit of constitutional rights should be interpreted restrictively because the application of the weak rational relationship test as part of the rule of law serves the separation of power principle better than the application of the stricter reasonable test for the limitation of constitutional rights (in the separate concurring judgment of Theron J) is questionable. Whereas legality as part of the rule of law is always complied with when the weak rationality relationship exists, reasonableness in terms of section 36 does not always amount to the application of a stricter test. The existence of a very compelling purpose (to combat a pandemic that threatens life and limb) or a factually slight limitation of a right (to stop at a stop sign) could be the basis of a conclusion that the limitation is justifiable when the weak rational relationship test is complied with. The court’s consideration of proportionality under the umbrella of the application of the weak rational relationship test causes more uncertainty in the present somewhat unruly field of the application of rationality tests.
23
Everatt, David. "Xenophobia, Civil Society and South Africa." Politikon 38, no. 1 (March 15, 2011): 1–5. http://dx.doi.org/10.1080/02589346.2011.548661.
Full text
24
Jordaan, Eduard. "South Africa and Civil and Political Rights." Global Governance 25, no. 1 (March 1, 2019): 171–97. http://dx.doi.org/10.1163/19426720-02501009.
Full textAbstract:
Abstract For constructivists, a state’s identity implies its preferences, interests, and resultant actions in international affairs, which is why constructivists expect democracies to support human rights internationally. This study examines South Africa’s record on civil and political rights at the UN Human Rights Council. While there is an element of anti-imperialism in South Africa’s identity that might help explain some of its actions, human rights remain important in South Africa’s self-understanding. Despite the presence of human rights in South Africa’s identity, at the Human Rights Council, South Africa’s actions have ranged from failing to uphold civil and political rights to supporting their restriction. A bifurcated national identity therefore diminishes the predictive power of a constructivist national identity approach.
25
STURMAN, KATHRYN. "NEPAD AND CIVIL SOCIETY IN SOUTH AFRICA." African Security Review 13, no. 1 (January 2004): 35–37. http://dx.doi.org/10.1080/10246029.2004.9627267.
Full text
26
Moosa, Ebrahim. "Islam and Civil Society in South Africa." American Journal of Islam and Society 11, no. 4 (January 1, 1994): 602–4. http://dx.doi.org/10.35632/ajis.v11i4.2447.
Full textAbstract:
Somehow, apartheid brought with it unexpected benefits, such asthe formation of an effective civil society. In addition to the fact thatSouth Africa currently enjoys a preferential status in the internationalcommunity, over the decades state-driven apartheid was resisted by astrong civil society and mass-based organizations. There may be somevalidity to the argument that since the inception of a peaceful transitionto democracy, community-based organizations, nongovernmentalorganizations, and others have somewhat receded from thescene and, in so doing, have weakened civil society. Yet it would beincorrect to say that the new state dominates the postapartheid society.It was to explore the dynamics of the Muslim role in civil societythat the UNISA conference was convened. Several speakers reflectedon the experience of civil society in the Muslim world (JohnEsposito), Sudan (John Voll), Tunisia (Rashid al-Ghanushi), andAfrica in general (Ali Mazrui). All together, some twenty-three papersdealing with various aspects of South African civil society werepresented. Issues related to gender discourse in Islam (Amina WadudMuhsin),culture and conflict (Richard Martin), and interpreting Islamin a postmodern world (Tamara Sonn) were also discussed.The conference discussion was often lively, largely due to theattendance of more than two hundred people for three days. Whilethis format facilitated general public participation, it also inhibited a ...
27
John Tshikosi, Ratau, and Livhuwani Priscilla Sekhula. "Ethno-National Colonialism in South Africa." International Journal of Social Science Research and Review 4, no. 3 (October 1, 2021): 37–47. http://dx.doi.org/10.47814/ijssrr.v4i3.96.
Full textAbstract:
The purpose of this dissertation is to answer the question: why do ostensibly similar ethno-national conflicts within a system of settler-colonial domination see such wide variation in their outcomes? How they emerge from conflict through power sharing and social integration versus the endurance of separation and systems of domination and control? The study identifies causal paths that resulted in the decline of domination systems of this type. Ethno-national conflicts that feature certain similarities develop in different trajectories due to certain conditions that culminate in transforming the structures of these conflicts towards integration (the establishment of a single political entity) or separation (independence in separate entities). The goal of the dissertation is to examine the Palestinian-Israeli conflict through a comparative lens in order to specify the conditions that led to the persistence of the two-state solution and to examine the prevalence or lack of necessary and sufficient conditions for the emergence of a one civic-democratic state. Building on the comparative approach I argue that ethno-national territorial underpinnings of the conflict and the “regimes of territorial legitimation” of the dominant group are the most crucial explanatory factor in determining the trajectory and outcome of the conflict. “Regimes of territorial legitimation” are the practices, procedures, systems of meaning, and institutional designs that found the relationship between a nation, people or ethno-national group and geography/territory. The dissertation features a qualitative structured and focused comparison of the conflicts in South Africa, and Palestine. Method of difference is applied for a case-oriented interpretive inquiry that focuses on the complexity of each of the two cases and aims at capturing the historical diversity of these similar cases.
28
Gutteridge, William. "Pretoria's praetorians: civil-military relations in South Africa." International Affairs 61, no. 2 (April 1985): 333. http://dx.doi.org/10.2307/2617542.
Full text
29
Adam, Heribert, and Philip H. Frankel. "Pretoria's Praetorians: Civil-Military Relations in South Africa." American Historical Review 91, no. 4 (October 1986): 975. http://dx.doi.org/10.2307/1873448.
Full text
30
Young, Crawford, and Philip H. Frankel. "Pretoria's Praetorians: Civil-Military Relations in South Africa." Political Science Quarterly 100, no. 4 (1985): 705. http://dx.doi.org/10.2307/2151560.
Full text
31
Whitaker, Jennifer Seymour, and Philip H. Frankel. "Pretoria's Praetorians: Civil-Military Relations in South Africa." Foreign Affairs 63, no. 5 (1985): 1132. http://dx.doi.org/10.2307/20042448.
Full text
32
Glaser, Daryl. "South Africa and the limits of civil society." Journal of Southern African Studies 23, no. 1 (March 1997): 5–25. http://dx.doi.org/10.1080/03057079708708520.
Full text
33
Jooste, R. D. "Insider dealing in South Africa – the civil aspects." De Ratione 4, no. 1 (December 1990): 29–33. http://dx.doi.org/10.1080/10108270.1990.11435013.
Full text
34
INGHAM, KENNETH. "Pretoria's Praetorians: Civil-Military relations in South Africa." African Affairs 85, no. 341 (October 1986): 619–20. http://dx.doi.org/10.1093/oxfordjournals.afraf.a097826.
Full text
35
Bosch, Adél, and Franz Ruch. "An Alternative Business Cycle Dating Procedure for South Africa." South African Journal of Economics 81, no. 4 (June 20, 2013): 491–516. http://dx.doi.org/10.1111/j.1813-6982.2012.01339.x.
Full text
36
Sowman, M. R. "Environmental evaluation procedure for coastal developments in South Africa." Ocean and Shoreline Management 14, no. 2 (January 1990): 133–50. http://dx.doi.org/10.1016/0951-8312(90)90050-r.
Full text
37
Millard, D., and B. Kuschke. "Transparency, trust and security: An evaluation of the insurer's precontractual duties." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 6 (November 14, 2014): 2412. http://dx.doi.org/10.4314/pelj.v17i6.05.
Full textAbstract:
Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.
38
Nyawasha, Tawanda Sydesky, and Phakiso Michael Mokhahlane. "The Paradox of Civil Policing in Contemporary South Africa." Insight on Africa 9, no. 2 (June 13, 2017): 109–25. http://dx.doi.org/10.1177/0975087817707448.
Full textAbstract:
This article is a study of democratic policing in contemporary South Africa. The attempt in this article is to offer a scholarly analysis on the nature of civil policing in South Africa. Empirically, our focus is on everyday observations and also public discourse shaped and transmitted within the civil and political realms of the broader South African community. We argue that civil policing and security in South Africa is typified by a paradox that destroys the civic virtue and rationale of policing. It is our argument also that this paradox has posed a significant challenge to democratic and civil policing in a new South Africa. The solution to this paradox, we will argue, lies in recognising policing and security as uniquely constituted ‘public goods’. We also argue for a rethink on the place of culture in the policing register and grammar of post-apartheid South Africa. In this article, our treatment of civil policing and its challenges in South Africa is informed by recent incidences that have shown an imbrication between violence and the repertoires of policing. Overall, we contend that policing in contemporary South Africa sits at the disjuncture between political liberation and the persistent use of physical force. In all the cases, we shall refer to in this article, we will attempt to show how policing has often been entirely extricated from the habitus of law.
39
Biswas, Seema. "Into Africa." Bulletin of the Royal College of Surgeons of England 97, no. 1 (January 2015): 36–38. http://dx.doi.org/10.1308/147363515x14134529299664.
Full text
40
Schmitz, Peter, Kelcey Inglis, and Patrick Holloway. "Forensic mapping in a civil proceeding in South Africa." Proceedings of the ICA 4 (December 3, 2021): 1–7. http://dx.doi.org/10.5194/ica-proc-4-96-2021.
Full textAbstract:
Abstract. This paper discusses the application of forensic cartography in a civil arbitration case. This arbitration case stemmed from a hijacking of a freight of cigarettes on the 9th of May 2012. Forensic cartography in the form of a report was used to illustrate that the driver of a third-party logistics company was complicit with the crime syndicate that committed the hijacking. Cell phone data was used to map the communication between the various suspects and the driver. The time period of interest was between 15 December 2011 and 9 May 2012. The cellular base stations were used to map these communications in time and space. Based on the evidence provided it was clear that the driver of the third-party logistics company was complicit in committing the crime which led to the arbitration proceedings to be settled by the third-party logistics company in favour of the cigarette manufacturer. Further, it was concluded that the cartographic representation selection for forensic purposes is dictated by the specific case being investigated.
41
Hearn, Julie. "Aiding democracy? Donors and civil society in South Africa." Third World Quarterly 21, no. 5 (October 2000): 815–30. http://dx.doi.org/10.1080/713701079.
Full text
42
Hirschmann, David. "Civil society in South Africa: Learning from gender themes." World Development 26, no. 2 (February 1998): 227–38. http://dx.doi.org/10.1016/s0305-750x(97)10021-3.
Full text
43
Bridgman, Martha. "Parliament, foreign policy and civil society in South Africa." South African Journal of International Affairs 9, no. 1 (June 2002): 69–74. http://dx.doi.org/10.1080/10220460209545378.
Full text
44
Lehman, Howard P. "The emergence of civil society organizations in South Africa." Journal of Public Affairs 8, no. 1-2 (February 2008): 115–27. http://dx.doi.org/10.1002/pa.288.
Full text
45
Brickhill, Jason, and Christine Grobler. "The right to civil legal aid in South Africa : Legal Aid South Africa v Magidiwana." Constitutional Court Review 8, no. 1 (August 2016): 256–81. http://dx.doi.org/10.2989/ccr/2016.0009.
Full text
46
Mthombeni, Zama. "Xenophobia in South Africa." Thinker 93, no. 4 (November 25, 2022): 63–73. http://dx.doi.org/10.36615/the_thinker.v93i4.2207.
Full textAbstract:
Despite the human rights principles established in South Africa’s Constitution, there have been recurrent waves of xenophobia throughout the country’s history. Foreigners who live in South Africa have been perceived as the victims of xenophobia and South Africans as the perpetrators. This paper aims to problematise the usage of the ‘ubuntu’ ideology as a utopian African ethic to promote ‘universal’ African humanism. It seems that apartheid’s heritage, which produced the present-day South Africa in which these xenophobic events occur, is often overlooked when South Africans are characterised as xenophobic and in need of ubuntu salvation. The study makes the case that colonial and political issues, which continue to have an impact on high levels of poverty and unemployment, should be considered as ongoing contributors to xenophobia. Several anti-immigration organisations have emerged as discussion points in the country. This study will only concentrate on one of these: Operation Dudula. This paper critically examines the reasons why Operation Dudula is continuing to expand despite protests from civil society organisations. This paper demonstrates, via media stories, how the media primarily portrays the organisation as vigilante that vex ubuntu and African unification. The paper makes the claim that marginalised South Africans are ‘Native Foreigners’, as opposed to simply perpetrators, drawing on Neocosmos’ idea of native foreigners. Instead of being considered as a problem that needs ubuntu’s salvation, the paper argues that anti-immigrant organisations should be understood as a sign of unsolved colonial and political problems that need to be addressed.
47
MacFarlane, Campbell. "Terrorism in South Africa." Prehospital and Disaster Medicine 18, no. 2 (June 2003): 133–39. http://dx.doi.org/10.1017/s1049023x00000893.
Full textAbstract:
AbstractThe Republic of South Africa lies at the southern tip of the African continent. The population encompasses a variety of races, ethnic groups, religions, and cultural identities. The country has had a turbulent history from early tribal conflicts, colonialisation, the apartheid period, and postapartheid readjustment.Modern terrorism developed mainly during the apartheid period, both by activities of the state and by the liberation movements that continued to the time of the first democratic elections in 1994, which saw South Africa evolve into a fully representative democratic state with equal rights for all.Since 1994, terrorist acts have been criminal-based, evolving in the Cape Town area to political acts, largely laid at the feet of a predominantly Muslim organisation, People against Gangsterism and Drugs, a vigilant organisation allegedly infiltrated by Muslim fundamentalists. Along with this, has been terrorist activities, mainly bombings by disaffected members of white, right-wing groups.In the apartheid era, a Draconian series of laws was enacted to suppress liberation activities. After 1994, most of these were repealed and new legislation was enacted, particularly after the events of 11 September 2001; this legislation allows the government to act against terrorism within the constraints of a democratic system. Disaster management in South Africa has been largely local authority-based, with input from provincial authorities and Civil Defence. After 1994, attempts were made to improve this situation, and national direction was provided. After 11 September 2001, activity was increased and the Disaster Management Act 2002 was brought into effect. This standardized disaster management system at national, provincial, and local levels, also facilites risk assessment and limitation as well as disaster mitigation.The potential still exists for terrorism, mainly from right wing and Muslim fundamentalist groups, but the new legislation should stimulate disaster management in South Africa to new and improved levels.
48
Du Plessis, Hanri Magdalena. "Legal Pluralism, uBuntu and the Use of Open Norms in the South African Common Law of Contract." Potchefstroom Electronic Law Journal 22 (October 23, 2019): 1–37. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6456.
Full textAbstract:
In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the Romans realised that their existing formal and rigid laws could not address the changing legal needs of the community due to the influx of foreigners (especially foreign traders) into Rome. In reaction to the changing commercial environment, they introduced flexible legal procedures and a more normative approach to these legal transactions to achieve fairness and justice between the contracting parties. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It is argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system, and its application as an underlying constitutional value could result in the better use of the open norm of good faith to address contractual unfairness.
49
Zimmermann (Hrsg.), Reinhard, and Daniel Visser (Hrsg.). "Southern Cross. Civil Law and Common Law in South Africa." Verfassung in Recht und Übersee 31, no. 1 (1998): 101–3. http://dx.doi.org/10.5771/0506-7286-1998-1-101.
Full text
50
Berat, Lynn, Reinhard Zimmermann, and Daniel Visser. "Southern Cross: Civil Law and Common Law in South Africa." International Journal of African Historical Studies 33, no. 1 (2000): 169. http://dx.doi.org/10.2307/220286.
Full text