Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20180002&lang= vol. 24 num. 2 lang. <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Race and nation. On <i>ius sanguinis </i>and the origins of a racist national perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200001&lng=&nrm=iso&tlng= Until the beginning of the nineteenth century, the ius soli was the default common standard to acquire citizenship in Europe. Its roots - which were ultimately developed by the Middle Ages' glossators and commentators - were interconnected with the notion of sovereignty and had a working simplicity that avoided the generation of stateless people in various territories of the early modern European states. With the promulgation of the Code Napoléon1 this finally came to change with the introduction of the ius sanguinis as the main criterion to recognise nationality. Its imposition was against the whole of the Western legal tradition - one preserved in the Americas because of the independence processes the different colonies experienced from their earlier metropolis - the main scholarship that influenced the code and even the wishes of Napoleon. What made the codifying commission adopt such an unusual standard? We will try to establish that the emergence of the first essays on what came to be known as scientific racism - a dark science, which tends to explain national character in terms of genetic heritage - was at the very base of this development. <![CDATA[<b>The <i>lex cornelia de iniuriis </i>and "hyperlinks" in Roman law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200002&lng=&nrm=iso&tlng= The development of modern technology has resulted in some interesting new legal problems, such as whether using a hyperlink on a website to libellous material amounts to punishable defamatory libel. This article asks the question if there are analogous cases and rules to be found in the Roman law of insult to these novel forms of indirect or veiled modes of defamatory libel. It appears that specifically indirect forms of insult were not punished by means of the private delict iniuria but rather by the republican crimen formulated in the lex Cornelia de iniuriis. A senatus consultum in the early principate then either enhanced the scope of the lex Cornelia, or effected the application of the lex Iulia de maiestate to these indirect modes of insult. The article contends that the ground for the senatus consultum may tell us something about the division between "public" and "private" in Roman law, and perhaps even Roman society in general. <![CDATA[<b>John Stuart Mill on matrimonial property and divorce law reform</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200003&lng=&nrm=iso&tlng= Victorian England is often seen as an era of stability for marital and family life. In reality, it was a period of significant legal and social change that opened the way for the introduction of the modern family court system. It was a time and place where women had very few legal rights in regards to divorce and matrimonial property. John Stuart Mill was a key proponent for the advancement of women's rights in the Victorian period. The article argues that Mill was an advocate for equal opportunity for women based on ideals of liberty, but this was based on a gender complementarian division of roles within the family. The article focuses on Mill's major work on women's rights, The Subjection of Women. Mill presented a radical piece of writing based on principles of equality as a source of moral progress amidst the reactionary politics of Victorian England. <![CDATA[<b>The omissions in <i>Oppelt</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200004&lng=&nrm=iso&tlng= In this article, we explore the relationship between the legal historical method and the constitutionally transformative approach to the study of the South African private law. For this purpose, we provide an analysis of the decision in Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2016 (1) SA 325 (CC). In that case the claimant suffered a spinal injury during a rugby match and claimed damages on the basis of various omissions of medical professionals who failed to treat him timeously. These omissions lead to the claimant becoming quadriplegic. A legal historical analysis is conducted on the Aquilian liability for omissions and how the law related to omissions has developed in modern South African law. Thereafter the transformative constitutional approach to the South African private law - and more specifically the South African law of delict - is taken up. We conclude by considering the omissions in the Oppelt case, not only in the sense of conduct, but also in the sense that the Supreme Court of Appeal omitted to consider relevant constitutional considerations and the Constitutional Court omitted to thoroughly grapple with the common-law principles related to the case. <![CDATA[<b>Was Aunt Jane a shoplifter?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200005&lng=&nrm=iso&tlng= This article thoroughly re-examines Aunt Jane's prosecution for shoplifting in the light of the three pamphlets published in the week after the trial, her own letters, contemporary local newspapers, and contemporary rules of evidence and criminal procedure. It concludes that the verdict of not guilty was correct and that the prosecution witnesses were guilty of perjury. <![CDATA[<b>The first of May: do workers have anything to celebrate in South Africa twenty years into democracy?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200006&lng=&nrm=iso&tlng= The fight for workers' rights and other conditions of service in employment has been an on-going process for a number of decades. unions have been at the forefront of driving this fight against stiff resistance from employers, especially prior to 1994. However, after the demise of apartheid, we have seen labour contributing immensely to the development of workers' rights in a few ways. First, the involvement of labour at the National Economic Development and Labour Council has ensured that matters affecting workers or their inputs are taken into account when Parliament legislates on issues affecting them. And, secondly, the participation of unions in the creation of collective agreements ensures that workers play a vital role in the creation of codes of conduct that regulate terms and conditions in the workplace. In areas where unions have successfully managed to address issues affecting workers these have been made known and is believed to be celebrated during the International Workers Day. The celebration of this day is not only limited to achievements or successes that unions and workers have achieved over the years, but labour can also use these kinds of celebrations to reflect on the gaps and shortfalls in their attempts to uplift the lives of workers. It is acknowledged that great improvements have been made in the area of labour law such as the proposed National Minimum Wage and various pieces of legislation and amendments to existing ones. However, it is clear that the journey of liberating workers is not near the end as unions and workers still face huge challenges of eradicating wage inequality in employment, inequality for work of equal value, the issue of safety in the workplace, labour brokering, the e-tolling system in the Gauteng roads, and many more. <![CDATA[<em><b>Brown v Leyds No</b></em><b> (1897) 4 or 17: a constitutional drama in four acts. 1 Act four: Kotzé delivers his judgement, Kruger dismisses him, Milner prepares for war and Brown seeks international redress</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200007&lng=&nrm=iso&tlng= This is the fourth and final article in a series on the historical and jurisprudential background to the well-known case of Brown v Leyds NO (1897) 4 OR 17, based on the book, Brown v Leyds, Who Has the King's Voice (2017, LexisNexis). It discusses Chief Justice Kotzé's judgement in Brown in detail and the major political fallout it generated. Kotze's judgement was his expression of the ultimate authority of the 1858 Grondwet (Constitution) in the Zuid-Afrikaansche Republiek, the judicial interpretation of which transcended legislative and executive authority in the state. In finding for Brown and against the state, Kotzé asserted in open court the primacy of judicial interpretation of the Grondwet over the highest authority of the Volksraad (the legislative authority), that is, the sovereign authority that the state president and his Volksraad had always regarded as an unimpeachable constitutional guarantee. The judgement caused unprecedented political upheaval. It led to the state president dismissing the chief justice from office. It also served to confirm the conviction of imperial Britain that the Boers could not be trusted to govern the land in which the world's largest gold deposits lay. The chief justice's dismissal was a significant contributor to the outbreak of the Anglo-Boer War in October 1899. Robert Brown, in whose favour Kotzé had found, was unable to exert the rights to the claims on the Witfontein gold diggings the Supreme Court had found he was entitled to. He took his cause to the united States Senate. After the Anglo-Boer War, the united States took up Brown's cause with Great Britain. Great Britain refused to acknowledge any obligation to Brown to recompense him for the loss of his claims. The dispute dragged on for years. Only in 1923 did an international arbitral tribunal, presided over by Henry Fromageot, finally dispose of the matter, finding for Great Britain and therefore against Brown. <![CDATA[<b>Remarks on the uniformity of natural law concepts in the history of legal philosophy</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200008&lng=&nrm=iso&tlng= The aim of this paper is to investigate different meanings of the concept of natural law in the history of ideas since the early Greeks. Texts of Plato, Aristotle and the Stoics are briefly examined, followed by an analysis of some well-known texts of Roman law. Although natural law is generally-speaking linked with human equality, it appears from this investigation that sometimes in antiquity, natural law is also invoked to underpin human inequality. A parallel is drawn with natural-law philosophy in the twentieth century. On the one hand, we find that the link between natural law and human equality is most often maintained, but on the other hand we also find invocations of natural law to justify societal exclusion. Is this the reason for the intrinsic weakness of natural-law philosophy? <![CDATA[<b>A tale of two translations: Van Leeuwen and Van der Linden and the application of Roman-Dutch law at the Cape in the 1820s; to which is appended a transcription of PB Borcherds' 1822 translation of book II of Van der Linden's <i>Koopmans Handboek</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2018000200009&lng=&nrm=iso&tlng= The Roman-Dutch law applicable at the Cape of Good Hope survived the British take-over of the settlement at the beginning of the nineteenth century for a number of reasons. One of these was the increasing availability, through translations into English, of the main sources of that legal system. This contribution spotlights two hitherto little known such translations, of works of Van Leeuwen and Van der Linden. One of these was by a local Cape lawyer, PB Borcherds. Although partly typeset and printed, the translation was, for apparently spurious reasons, never published; had it been, it may well have been the earliest legal work published at the Cape. The translation, existing only as archival material, is here transcribed and published for the first time, almost two hundred years after it should have appeared.