Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20170001&lang=en vol. 23 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Corporate criminal liability in South Africa: what does history tell us about the reverse onus provision?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100001&lng=en&nrm=iso&tlng=en An inevitable outcome of the coming into being of the Constitution in South Africa was the existence of a number of statutes or provisions within statutes that infringed some of the constitutionally entrenched rights. This led to the Constitutional Court finding itself faced with the responsibility of determining whether such provisions were in line with the Constitution or not. Many matters of this nature were heard during the period immediately after the promulgation of the Constitution. In South Africa corporate criminal liability is regulated by section 332 of the Criminal Procedure Act 1977. With regard to corporate criminal liability, the Constitutional Court heard a matter in which a reverse onus provision contained in section 332(5) of the Criminal Procedure Act was successfully challenged and declared invalid as it infringed the accused person's right to presumed innocent until proven guilty. Twenty years later, section 332 of the Criminal Procedure Act continues to exist with a sub-section that contains wording that is analogous to the invalidated section 332(5). In section 332(7) the reverse onus provision exists, albeit against members of associations that do not have legal personality. The sub-section has not been constitutionally challenged. However, the Constitutional Court, shortly after the coming into existence of the Constitution, heard several cases in which the validity of reverse onus provisions that infringed upon the right to be presumed innocent were successfully challenged. This article will examine some of these decisions in an attempt to show that history shows us that section 332(7) does not belong to the era we are in and if it was to be constitutionally challenged it is unlikely that it would survive. Emphasis will be put on the fact that we should not wait for a court challenge, but rather, the legislature should make a move towards the reform of corporate criminal liability and in so doing, eliminate reverse onus provisions that infringe upon the presumption of innocence. <![CDATA[<b>Tracing the roots of forfeiture and the loss of property in English and American law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100002&lng=en&nrm=iso&tlng=en Restriction of the freedom and rights of an owner to do with his property as he pleases is not a new phenomenon in legal jurisprudence, but restrictions are limited by legislative provisions and regulations. Interference with private property rights by state authorities may have dire consequences for an owner, and could give rise to forfeiture procedures when the property was used in violation of a law or for illegal purposes. The controversy is further exacerbated by the distinction between forfeitures in rem without prior conviction, which is a civil action directed against the so-called guilty property, and an action in personam or a criminal forfeiture, which forms part of the sentencing process after conviction and is directed against the owner personally. Asset forfeiture has an ancient history and tradition and the roots may be traced back to biblical justifications as a form of punishment. In rem forfeiture originated from the English common law concept of deodands. An inanimate object or animal that caused the death of a person was accused as the offender, and its value was forfeited to the king. Unlike deodands, forfeiture for felonies or treason is an ancient Saxon and early English common-law doctrine where in personam forfeiture was recognised. Upon conviction, all of a person's land and property ‒ real or personal - were forfeited to the Crown. This resulted in the corruption of blood, with the consequences that the bloodline of any person convicted and attained became stained or blackened and his descendants or family were prohibited from inheriting. The English common-law concept of deodand did not become part of the legal tradition in colonial America, and forfeiture for felony was almost never recognised. In rem forfeiture appeared for the first time in the United States' admiralty cases which were adapted from the English Navigation Acts of the seventeenth century. Any ship or vessel involved in piracy or slave trafficking was seized and forfeited, based on the guilty property fiction. The thing was considered as the offender, irrespective of the guilt of the owner. Civil and criminal forfeiture of the instruments of crime have survived constitutional scrutiny for many years, and are still applicable today, but are expanded to include a much broader variety of crimes.In conclusion the implications of these common law developments for South Africa are discussed. <![CDATA[<b>Statutory regulation of housebreaking and intrusion in South Africa - an historical perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100003&lng=en&nrm=iso&tlng=en This article discusses the statutory offences which regulated the unlawful conduct of housebreaking and intrusion in association with the common-law crime of housebreaking, taking account of antecedent and analogous provisions in the English law, as well as the developments in respect of these offences, prior to their repeal. The utility of these offences is thus considered, prior to an assessment of the reasons for their repeal. <![CDATA[<b>Physicians, patients and treatments in early medieval German (especially Bavarian) legislation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100004&lng=en&nrm=iso&tlng=en This study analyses the provisions of some early medieval "German" legislation concerning medical issues, such as healing, diseases and injuries. After a brief introduction, the study discusses the sedes materiae and the issue of dating those German codes (Volksrechte) that constitute the basis of comparison here, namely Bavarian, Visigothic, Langobardic and Alemannian law. Within the context of medical treatment during the early Middle Ages, a brief description is given of early medieval medicine and the physician's legal status as set out in legal and non-legal sources. This is followed by the analysis of the regulation of diseases, miscarriage, bodily injury and other injuries in the lex Baiuvariorum, that is then compared with the provisions of the above mentioned German codes. The study thereafter examines the legal consequences of diseases that influenced the legal capacity and the capability to participate in legal proceedings as well as the position with regard to abortion, the involvement of the physician and the treatment applied by him within the context of the law and folk language terminology regarding bodily injury and injuries. <![CDATA[<b>Colonial judges, administrative officers and the Bushe commission in interwar Kenya and Tanganyika</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100005&lng=en&nrm=iso&tlng=en By focussing on a colonial commission of inquiry into the administration of justice in East Africa, this article outlines the major themes that dominated East Africa's legal "world" during the interwar period. The most important of these was the doctrine of indirect rule, which was the prevailing administrative policy during the period. Ultimately, there were two opposing views during this period. The traditional view, held by the judiciary, was that Africans must be "civilised" and integrated into a system of British courts. The opposing view, advocated by administrative officers, held that Africans must be protected against the harmful consequences of any contact with foreign law. One of the central tenets of the doctrine was placing customary courts under the supervision of administrative officers rather than under judges. Directly linked to the resulting legal problems were disagreements between the two sides as to the applicability of English law and customary law. More widely, this detailed study of the Bushe Commission provides an opportunity to view the administration of justice from the perspective of the Colonial Office as well as the colonial state. <![CDATA[<b><i>Brown v Leyds</i></b><b> no </b><b>(1897) 4 or 17: A constitutional drama in four acts. Act one: the 1858 Constitution of the Zuid-Afrikaansche Republiek</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100006&lng=en&nrm=iso&tlng=en This is the first of a series of articles on the historical and jurisprudential background to the well-known judgement of Chief Justice John Kotzé in Brown v Leyds NO (1897) 4 OR 17. Central to the Brown judgement was the liberal interpretation Chief Justice Kotzé attached to the 1858 Constitution (the Grondwet) of the South African Republic (the Zuid-Afrikaansche Republiek). The articles traces the jurisprudential history of the Grondwet, from the earliest conceptions of statehood adopted by the Voortrekkers of the Great Trek, to the first feeble forms of Republican government adopted by the Boers. It then describes the different ideological conceptions within the Boer society of the trans-Vaal region that came to be attached to the notion of the "volkstem" (the voice of the people) as an expression of the "volkswil" (the will of the people). These different ideological conceptions were best captured as responses to the question "Wie heeft de Koningstem?" ("Who has the King's voice?"). These ideological differences gave rise to political differences that inhibited the framing of a proper constitution for the territory for six years. Various attempts at drafting a constitution are described, as are the compromises that were reached and the distinctions that were drawn in order to reach a position where, in February 1858, a Constitution that carried the approval of all the people was finally adopted. This history, in which Paul Kruger, the later State President, played an integral part, is important for a proper understanding of why the judgment adopted by Kotzé in Brown was untenable, laudable though his motives were. <![CDATA[<b>Judicial administration beyond the Orange River from 1839 to 1843: the first magistrates and their duties</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100007&lng=en&nrm=iso&tlng=en In the aftermath of the Great Trek, the emigrant farmers settled in the areas that would later become known as Natal, the Zuid-Afrikaansche Republiek and the Orange Free State. From October 1840 until August 1843 these areas were administered as one territory and were governed by the Natal Volksraad seated at Pietermaritzburg. As early as 1839 the Natal Volksraad demarcated districts and appointed magistrates for each district. These districts were Pietermaritzburg, Port Natal, Weenen, Potchefstroom and Winburg. During this early period, the magistrates were tasked with duties beyond their usual judicial responsibilities. This contribution takes a closer look at the office of the magistrate beyond the Orange River during the period from 1839 to 1843 by looking first at the individuals who were appointed to these positions, and secondly by examining some of their duties as are evident from the minutes of the Natal Volksraad. <![CDATA[<b>The history and politics of contemporary common-law purism</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100008&lng=en&nrm=iso&tlng=en This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems. <![CDATA[<b><i>Salus Rei Publicae Als Entscheidingsgrundlage des Römischen Privatrechts</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100009&lng=en&nrm=iso&tlng=en This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems. <![CDATA[<b>Im</b><b> gedenken an Imre Molnár</b>  22. September 1934 - 16. Oktober 2016]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100010&lng=en&nrm=iso&tlng=en This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems. <![CDATA[<b>Advocate Dirk Gysbert Reitz: an addendum</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100011&lng=en&nrm=iso&tlng=en This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems. http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2017000100012&lng=en&nrm=iso&tlng=en This article explores the phenomenon of common-law purism in South Africa from a critical-legal-realist perspective, in historical context. The problem addressed in this piece is that the politics that could underlie common-law purism has not been comprehensively explored before. The problem is unpacked by conducting an archaeological study into what could be called "classical common-law purism" that once featured in the mid-1900s of South African legal history in terms of which various judges and academics committed themselves to the task of purifying the South African common law from English influences in favour of untainted Roman- Dutch law. In this regard close attention is paid to the lives and law of the late Chief Justice LC Steyn and Professor JC de Wet as two prominent figures often associated with this movement, with the aim of linking the two thinkers' socialisation and political commitments to their purism. It is then shown that at the time when classical common-law purism was on its deathbed, it was rejuvenated and took on a contemporary form. The goal of the movement was no longer to purify Roman-Dutch law from English "stains"; instead, the objective became to shield the common law against a human-rights inspired Constitution. In that discussion it is demonstrated that contemporary common-law purism is currently a dominant theoretical approach, at least in the law of delict and, perhaps through a process of abstraction, in "private" law more generally. Specific attention is paid to the views of various delict academics to illustrate the prevalence of contemporary common-law purism. In that process an attempt is made to draw connections between various thinkers' socialisation, political commitments and their purism. Finally, some concluding thoughts are provided on the possible political commitments contained in the purist movement. Essentially, the invitation that is extended to private-law lawyers is to be more politically candid about what they aim to achieve, as a matter of justice, in the stances that they take on the issue of constitutional application to common-law problems.